IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100008962 


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 her general discharge under honorable conditions be upgraded to a fully honorable discharge.

2.  She states the purpose of her request is mainly for peace of mind and she would like to reflect on her time in the service in a better way.  She also states that she misses being in the military, but while she was in she was not allowed to do her job.  She concludes that had she been allowed, she would have ultimately retired from the military after completing over 20 years of service.

3.  She provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  Her record shows she enlisted in the Regular Army on 29 April 1986.  Upon completion of initial entry training, she was awarded military occupational specialty (MOS) 15P (Lance Missile Crewmember).  The highest rank/pay grade she attained while serving on active duty was private (PV2)/E-2.  However, at the time of her separation she held the rank/pay grade of private/E-1.

3.  Her record reveals a disciplinary history that includes numerous adverse counseling statements for poor duty performance and failing to report to her appointed place of duty at the prescribed time on several occasions.

4.  Her record also reveals her acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for committing the following offenses in violation of the Articles of the UCMJ indicated:

* Article 86, for failing to report to her appointed place of duty at the prescribed time on two occasions
* Article 86, for absenting herself from her unit without authority on two occasions
* Article 92, for disobeying lawful orders on four occasions

5.  On 21 April 1987, the applicant’s unit commander notified her that he was initiating action to separate her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited the applicant's disciplinary history as the basis for this action.  The unit commander also informed the applicant that she could receive a general, under honorable conditions discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of her rights to consult with legal counsel, to submit written statements in her own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  She acknowledged receipt of the unit commander's notification on the same date

6.  On 21 April 1987, the applicant’s unit commander recommended that she be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory duty performance.  The unit commander cited her disciplinary history, failure to respond to counseling, and inability to conform to acceptable standards of Soldiering as the basis for this action.



7.  On 4 May 1987, having been advised by consulting counsel, she acknowledged the fact that she had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to her.  She was also informed that if she was issued a general, under honorable conditions discharge, she could expect to encounter substantial prejudice in civilian life.  The applicant elected not to make any statements in her own behalf.

8.  The separation authority approved the unit commander's request and directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and that she be issued a General Discharge Certificate.

9.  On 18 May 1987, she was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 issued to her at the time shows that she received an "Under Honorable Conditions" characterization of service.  Block 25 (Separation Authority) shows that she was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 26 of this form shows she was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

10.  There is no evidence in the available record that indicates she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

11.  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.

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 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's contention that her general, under honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows she had multiple disciplinary infractions.  In spite of her indiscipline, her chain of command was willing to allow her to remain on active duty and continue to serve.  Evidence shows she was not responsive to the rehabilitative efforts of her command.

3.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, she is not entitled to an upgrade of her general, under honorable conditions discharge to 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)                                         AR20100008962



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ABCMR Record of Proceedings (cont)                                         AR20100008962



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