IN THE CASE OF:	  

		BOARD DATE:	    26 August 2010

		DOCKET NUMBER:  AR20100008379 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* he honorably served his country
* he made one mistake by getting into a contest with his racist first sergeant (1SG)
* he was a young kid with no knowledge of the system
* his 1SG kicked him out of the Army for personal reasons
* he volunteered to serve his country
* he did not deserve the ending he received
* he describes his post-service accomplishments
* he is attempting to complete his master's degree
* he references his awards and questions how could he have been a bad Soldier having received these awards
* an older, more experienced senior noncommissioned officer manipulated the system against him for his own satisfaction
* his general discharge greatly hinders his employment ability

3.  The applicant provides the following documents in support of his application:

* self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Los Angeles City College unofficial student record
* California State University at Los Angeles official transcript

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 19 June 1985.  He was trained in and held military occupational specialty 71L (Administrative Specialist).

3.  The applicant's DA Form 2-1 shows he attained the rank/grade of private first class/E-3 on 1 July 1986.  This was the highest rank/grade he held on active duty.  It also shows he earned the following awards during his active duty service:

* Army Commendation with 1st Oak Leaf Cluster
* Army Achievement Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 28 May 1987 for driving while intoxicated.

5.  The applicant's military record also shows he was formally counseled three times during 17-31 March 1971 for the following disciplinary infractions:

* failing to prepare for inspection
* failing to be at his appointed place of duty
* coming and going as he pleases
* poor work performance

6.  On 31 July 1987, the applicant was formally counseled regarding his transfer to the Military Instruction Course (MIC) for the purpose of becoming better motivated and prepared for continued military service or, if appropriate, separation action.

7.  The applicant's military record contains eleven Fort Riley Forms 1902 (Trainee Observation Report) for the period 13-20 August 1987 which show the following observations against him:

* poor work performance
* late for formation
* failure to call barracks to "at ease"
* unsecured clothes and equipment
* not complying with corrective training
* sleeping on duty
* disobedience

8.  On 3 September 1987, the Commander, U.S. Army Correctional Activity, prepared a discharge packet for the applicant's unit commander to expedite the applicant's elimination from the service under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), following his failure to successfully complete the MIC.

9.  The unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 13-2a, for unsatisfactory performance.  The unit commander cited the applicant's failure to successfully complete the MIC as the basis for the proposed separation action.

10.  On 20 October 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive representation by counsel and to make a statement in his own behalf.  However, a copy of his statement is not included in his military record.

11.  On 23 October 1987, the separation authority approved the applicant's separation and directed that he receive a general discharge.  He also waived further counseling and rehabilitation requirements.  On 5 November 1987, the applicant was discharged accordingly.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable.

14.  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 member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's post-service accomplishments are noted and considered commendable.  However, his misconduct while on active duty clearly diminished the overall quality of his service below that meriting a fully-honorable discharge, did not support the issuance of an HD by the separation authority at the time, and does not support an upgrade of his discharge now.

4.  In view of the forgoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100008379



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)