IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009513 


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 be upgraded to a fully honorable discharge.

2.  The applicant states that he was 4 months from completing his enlistment and he feels that he served honorably.  He believes his narrative reason for separation is unjust, because it does not portray an honest reflection of his service.  He also states that he has grown and matured.  He is not a young man anymore and he does not want his sub-par separation status to follow him around any longer.

3.  The applicant provides copies of three certificates of achievement.

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 was born on 13 April 1961 and enlisted in the Regular Army with a moral waiver on 23 July 1980, for a period of 3 years, training as a tactical wire operations specialist, and assignment to Europe.  He was transferred to Fort Jackson, South Carolina to undergo basic training.

3.  On 16 September 1980, nonjudicial punishment (NJP) was imposed against him for wrongfully engaging in a fist fight with another Soldier.

4.  He was transferred to Fort Gordon, Georgia where he completed his advanced individual training and was then transferred to Germany on 28 November 1980 for assignment to an air defense artillery battery in Amberg, Germany.  

5.  On 26 June 1981, NJP was imposed against him for wrongfully communicating threats to physically harm two Soldiers by cutting them with a knife.

6.  On 24 September 1982, NJP was imposed against him for assaulting another Soldier who was on duty as a Charge of Quarters (CQ) runner.

7.  On 3 November 1982, the applicant was counseled by the company executive officer regarding failure to pay just debts.  The unit had received a letter of indebtedness indicating the applicant had failed to pay a German telephone bill totaling 6,907.69 Deutsche Marks.

8.  On 22 January 1983, NJP was imposed against the applicant for disobeying a lawful order by being disrespectful in language towards a superior noncommissioned officer (NCO).

9.  On 1 February 1983, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He cited as the basis for his recommendation that the applicant had become a disciplinary problem and had not responded to NJP and repeated counseling.  He went on to state that the applicant’s actions showed a total disregard for authority, that his job performance had been poor, and that he required a lot of supervision to ensure he accomplished his assigned tasks.  He further stated that the applicant’s display of apathy, lack of desire and his unwillingness to conform to military standards required his immediate separation.

10.  After consulting with counsel, the applicant elected to submit a statement in his own behalf in which he asserted, in effect, that he was unaware that his performance had been unsatisfactory because he had received a number of certificates of achievement while in the unit for his good performance.  He went on to state that he liked the unit and had extended to stay in the unit because he felt he could learn a lot in the unit.  He further stated that while he had made some mistakes, they never interfered with his performance and he desired to continue to serve in the Army.

11.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 18 April 1983 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He had served 2 years, 8 months, and 26 days of total active service.

13.  In July 1983, the Department of the Army was advised the applicant had a delinquent phone bill and the telephone company wanted to know the applicant's whereabouts.

14.  There is no indication in his official records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate given the circumstances.

3.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed during his period of service.  His service simply does not rise to the level of a fully 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)                                         AR20100009513



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ABCMR Record of Proceedings (cont)                                         AR20100009513



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