IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010936 


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 was told when he was discharged that he could have his discharge upgraded in 6 months
* he received an award saying he was a credit to himself, his country, and the U.S. Army
* he had a can-do attitude
* he was charged with driving under the influence (DUI) at Fort Hood, TX
* the Army was downsizing and asked him if he wanted to get out and he accepted
* he was a good Soldier 

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.  Having prior active service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 7 October 1981 for a period of 4 years.  He successfully completed one-station unit training and was awarded military occupational specialty 11B (infantryman).

3.  On 10 March 1982, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties.  His punishment consisted of a fine (suspended) and extra duty.

4.  Between 28 December 1982 and 24 May 1983, the applicant was counseled on numerous occasions for various infractions which included being absent from duty, indebtedness, DUI, public intoxication, failure to repair, unsatisfactory job performance, and unsatisfactory appearance.

5.  On 20 June 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's inability to conform to the standards of conduct established by the U.S. Army and indicated the applicant was a detriment to the morale and discipline of the unit.

6.  On 20 June 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 not to submit a statement in his own behalf.

7.  On 28 June 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

8.  Accordingly, the applicant was discharged on 11 July 1983 with a general discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 2 years, 1 month, and 3 days of creditable active service.

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

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 in effect at the time provided for separation due to unsatisfactory performance when in the commander's judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

11.  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.

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

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

4.  The applicant's record of service included adverse counseling statements and one nonjudicial punishment.  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)                                         AR20100010936



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ABCMR Record of Proceedings (cont)                                         AR20100010936



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