IN THE CASE OF:
BOARD DATE: 31 August 2010
DOCKET NUMBER: AR20100008022
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his general discharge, under honorable conditions be upgraded to honorable.
2. The applicant states his wife had left him and was sleeping with his best friend. He was enrolled at the time in the Defense Language Institute and he fell behind in his studies. He had requested to restart school, but was denied. Since then he has learned a lot and will soon complete a 4-year college degree, for which he would like to use his Department of Veterans Affairs (VA) educational benefits.
3. The applicant provides no additional documentation in support of his application.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 25 July 1990, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 95B (Military Police).
3. On 28 November 1990, the applicant was assigned to the Federal Republic of Germany for duty with the 300th Military Police Company. He relocated with his unit to Fort Leonard Wood, Missouri in August 1992.
4. On 5 February 1993, the applicant was reassigned to the 463rd Military Police Company. He remained with this unit until 7 October 1993, when he departed for language training at the Presidio of Monterey, California.
5. On 17 February 1994, the applicants commander notified the applicant of his intention to recommend separation from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The commander cited the following reasons for his action:
a. his lack of academic effort and apathy as shown by his falling grades; and
b. his acceptance of nonjudicial punishment on 21 January 1994 for being absent without leave (AWOL) for 1 day from 14 to 15 January 1994.
6. On 17 February 1994, the applicant acknowledged receipt of the commander's notification. He waived his right to counsel and did not elect to submit a statement in his own behalf.
7. On 18 February 1994, the applicant's commander initiated a recommendation to separate the applicant due to unsatisfactory performance. He also requested that the requirement for rehabilitative transfer be waived because the applicant had no potential for continued military service.
8. On 22 February 1994, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.
9. Accordingly, he was discharged under honorable conditions on 28 February 1994. He had completed 3 years, 7 months, and 3 days of creditable active service and had 1 day of lost time.
10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commanders judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
12. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his general discharge, under honorable conditions should be upgraded to honorable so he can obtain VA educational benefits.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
3. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4. The applicant's desire to VA educational benefits is not justification for an upgrade of his discharge.
5. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X___ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X____ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100008022
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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