IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008533 


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 his general discharge be upgraded to honorable.

2.  The applicant states he has worked hard and tried to be a good citizen since his discharge.

3.  The applicant provides no documentary evidence 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 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 enlisted in the Regular Army on 15 July 1982 for a period of 
3 years.  He successfully completed One Station Unit Training and was awarded military occupational specialty 11B (infantryman).

3.  In January 1983, the applicant was counseled on three occasions for various infractions which included being overweight, fighting, and disrespect. 

4.  On 31 March 1983, nonjudicial punishment (NJP) was imposed against the applicant for larceny.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

5.  On 14 April 1983, NJP was imposed against the applicant for disobeying a lawful order.  His punishment consisted of restriction and extra duty.

6.  On 18 April 1983, NJP was imposed against the applicant for breaking restriction.  His punishment consisted of a forfeiture of pay and restriction.

7.  On 19 April 1983, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His unit commander cited the applicant continually fails to be at the proper place at the proper time and he leaves his place of duty without informing his superiors and fails to return as the reasons for the recommendation for separation.

8.  On 20 April 1983, the applicant consulted with counsel and acknowledged notification of his pending separation.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf.  In summary, he stated:

* The chapter action is very wrong and based upon untrue statements
* He missed training because he was never informed of the training
* He was losing weight
* He was misinformed on several occasions of his assigned place of duty
* Poor information was released by his first platoon sergeant
* The Article 15 is not totally reflective of what happened at the PX
* He was required to be at two places at the same time
* He requested a transfer to a new unit 

9.  On 27 April 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
10.  Accordingly, the applicant was discharged with a general discharge on 
12 May 1983 under the provisions of Army Regulation 635-200, chapter 
13, for unsatisfactory performance.  He had served a total of 9 months and 28 days of creditable active service.  

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

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides 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 will be characterized as honorable or under honorable conditions.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.    

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  The applicant's brief record of service included adverse counseling statements and thee nonjudicial punishments.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.



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)                                         AR20100008533





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ABCMR Record of Proceedings (cont)                                         AR20100008533



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