IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009938 


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 honorable.

2.  The applicant states he wants his discharge upgraded so that he can be buried in the Department of Veterans Affairs (VA) cemetery with his father and brothers.

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 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.  On 1 August 1989, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 5 January 1990, the applicant was assigned to Headquarters and Headquarters Company, 2nd Brigade, Fort Drum, New York.

4.  On 9 May 1990, the applicant underwent a mental status evaluation.   The applicant's behavior was evaluated as normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking process was clear, his thought content normal and his memory fair.  He was capable of participating in the separation processing.

5.  On 10 May 1990, the applicant's commander notified him of his intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  The commander stated his reasons for this action were the applicant's continued unsatisfactory performance of duty despite counseling.  He had failed to become a productive Soldier and showed no interest in improving himself.  The commander saw no potential in him for further military service.

6.  On 15 May 1990, the applicant consulted with counsel.  He elected not to make a statement in his own behalf.  He requested representation by counsel.

7.  On 17 May 1990, the applicant's commander recommended that he be separated from the service for unsatisfactory performance based on his numerous counselings and behavior that showed he had no potential for further military service.

8.  On 5 June 1990, the Fort Drum Assistant Staff Judge Advocate stated in a memorandum that he had reviewed the discharge packet and found sufficient evidence to warrant the applicant's discharge from the Army.

9.  On 7 June 1990, the appropriate authority approved the recommendation and directed that the applicant be issued a DD Form 257A (General Discharge Certificate).

10.  Accordingly, he was discharged under honorable conditions on 20 June 1990.  He completed 10 months and 20 days of creditable active duty service.

11.  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.

12.  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 that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to honorable to be eligible to be buried in the VA cemetery with his father and brothers.

2.  The applicant's 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 were therefore appropriate considering all of the facts of the case.

4.  The applicant's desire to obtain VA burial 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)                                         AR20100009938



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009938



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1