IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100010966
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 an upgrade of his general under honorable conditions discharge to fully honorable.
2. The applicant states his records will confirm he had no deficiencies in his work while in the military.
3. The applicant provides no 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The records show he enlisted in the Regular Army on 8 August 1984. He was trained in and awarded military occupational specialty 52D (Power Generator Equipment Repairer.
3. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three separate occasions:
* wrongfully use marijuana on or about 1 March 1985 and 11 March 1985
* willfully disobeyed a lawful order on or about 27 July 1985
* willfully disobeyed a lawful order on or about 3 October 1985
4. The records show he received corrective counseling as follows:
* failed to secure wall locker, 20 August 1985
* failed to follow instructions, 16 July 1985
* disrespected a noncommissioned officer, 30 May 1985
5. The applicant acknowledged receipt of a memorandum from his immediate commander notifying him he was being recommended for separation for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).
6. The applicant consulted with legal counsel and was advised of the basis for contemplated separation for unsatisfactory performance and its effects, the rights available to him, and the type of discharge and its effect on further enlistment or reenlistment. The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions. He retained his rights to consideration of his case by a board of officers, appearance before a board of officers, and representation by counsel. He indicated he would submit statements on his behalf; however, no statement is available.
7. The separation authority waived the requirements for counseling sessions and rehabilitative transfer, approved the applicant's discharge, and directed he receive a DD Form 257A (General Discharge Certificate).
8. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance on 1 July 1986 in accordance with chapter 13 of Army Regulation 635-200 with a character of service of general under honorable conditions. This form also shows he completed a total of 1 year, 10 months, and 24 days of creditable active military service.
9. There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.
10. 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his discharge should be upgraded.
2. The evidence of record shows he displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command as evidenced by his several instances of NJP. Accordingly, his chain of command initiated separation action against him.
3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service.
4. Based on his record of substandard performance and/or indiscipline, his service does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to the requested relief.
5. In view of the foregoing, his request should be denied.
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) AR20100010966
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ABCMR Record of Proceedings (cont) AR20100010966
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