IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100010072 


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 discharge to honorable.

2.  The applicant states he is trying to achieve job security and all he needs is an upgrade.  He served his full overseas tour.  His overseas unit took the job very seriously, but his stateside unit was a joke.  He and his family were experiencing problems so he asked to get out.  He did not commit any offense, he just made a request.

3.  The applicant provides a copy of his 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.  The applicant enlisted on 22 July 1981, completed training as a light weapons infantryman in military occupational specialty 11B.  He was stationed with an infantry unit in Germany in November 1981. 

3.  In Germany he was advanced to pay grade E-3 on 22 June 1982 and then reduced to pay grade E-2 on 30 November 1982.  

4.  The applicant returned to the United States in April 1983 and was assigned to an infantry company at Fort Campbell, Kentucky.

5.  He received negative counseling statements in July and September 1983.  On 27 September 1983 his record was flagged to preclude favorable actions.  

6.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice:

* on 21 December 1983 for willful disobedience of a lawful order (WDOLO) and absence from his appointed place of duty (AAPD)
* on 31 January 1984 for AAPD and sleeping on guard duty
* on 29 February 1984 for WDOLO, violation of a lawful general order (VOLGO) and stealing a vehicle base decal from another Soldier
* on 15 March 1984 for AAPD, stealing another vehicle base decal, WDOLO and VOLGO

7.  At a 15 March 1984 mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The examiner, a psychiatrist, formed the impression that the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the requirements for retention.  The applicant was cleared for administrative action deemed appropriate by the command.

8.  The company commander notified the applicant that he was initiating separation action for unsatisfactory performance.

9.  The applicant consulted with counsel and he:

* waived his right to representation by counsel
* indicated that he was submitting statements in his own behalf but the document listed no enclosures and no statements are contained in the available records
* acknowledged that he could expect to encounter substantial prejudice in civilian life as the result of a general discharge
* acknowledged that he could apply to the Army Discharge Review Board and this Board
* acknowledged he would be ineligible to reenlist for a period of 2 years

10.  Orders directed the applicant's discharge on 7 May 1984.  He was separated with a general discharge under honorable conditions for unsatisfactory performance.  He had completed 2 years, 9 months and 14 days of creditable service and had 2 days lost time.

11.  Army Regulation 635-200 (Personnel Separations) 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 sets forth the basic authority for the separation of enlisted personnel.  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 states he is trying to achieve job security and all he needs is an upgrade.  He served his full overseas tour.  His overseas unit took the job very seriously, but his stateside unit was a joke.  He and his family were experiencing problems so he asked to get out.  He did not commit any offense, he just made a request.

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



3.  In view of the applicant's numerous disciplinary infractions, it appears that separation with a general discharge for unsatisfactory performance was fully supportable.

4.  In view of the foregoing 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)                                         AR20100010072





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ABCMR Record of Proceedings (cont)                                         AR20100010072



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