IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100011436 


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 discharge to an honorable discharge.

2.  The applicant states he performed his duties honorably and he was unjustly discharged 1 month before his expiration term of service (ETS) date.

3.  The applicant provides a letter of support.

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's military records show he enlisted in the Regular Army on 31 March 1976 for a period of 4 years establishing an ETS date of 30 March 1980.  He was awarded the military occupational specialty of power generator and wheeled vehicle mechanic and he was advanced to pay grade E-3, which is the highest grade he held during his tenure of service.

3.  Records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions between 15 January and 21 September 1979 for wrongfully appearing at the platoon sergeant's office with an unclean uniform and boots; needing a shave; being disrespectful in language towards the charge of quarters; and attempting to steal candy bars from the post exchange concessions.

4.  His records show he was counseled on seven occasions.  The counseling statements that were completed by his leadership during the period 22 May to   19 October 1979 indicate effort was extended to rehabilitate the applicant for his poor personal hygiene, poor maintenance of his personal area, poor performance, poor conduct, repeatedly driving a military vehicle without a driver license, writing bad checks, being drunk and disorderly, and not having soap for laundering his clothes to list only a few of the issues.  In one statement, his company commander indicated the applicant's intent was to get out of the Army and return home.  On another occasion it was determined that he had not washed or changed his bedding in 2 months and this and similar behavior related to his personal hygiene was having an adverse impact on other Soldiers.

5.  On 27 August 1979, the applicant's commander notified him of his intention to initiate action to separate him from the Army.  On the same date his commander recommended that he be separated from the military under the provisions of Army Regulation 635-200, chapter 13, due to unsuitability.  The applicant's commander indicated the applicant was unable to maintain his personal hygiene, personal property, and military equipment in a satisfactory manner.  The applicant had many chances to correct these behaviors but he failed to respond.

6.  The applicant's intermediate commander's recommendation for approval stated he had personally counseled the applicant, explained the implications associated with a chapter 13 elimination, and the applicant persisted in his desire to leave the service.

7.  On 21 September 1979, the applicant acknowledged he had been counseled and advised of the basis for the contemplated separation action under provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and its effects, of the rights available to him, and the effect of any action taken by him in waving his rights.  The applicant did not elect to submit a statement in his own behalf.   

8.  On 17 January 1980, the separation authority approved the recommendation for separation under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.  He directed that the applicant be discharged from the service and issued a general discharge.

9.  On 11 February 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 13 by reason of unsuitability, with a general discharge.  The DD Form 214 issued to him shows he completed a total of 3 years, 10 months, and 11 days of active service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability when it was established that in the judgment of his commander, he will not develop sufficiently to participate satisfactory in further military training and/or become a satisfactory Soldier.

12.  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 he performed his duties honorably and he was unjustly discharged 1 month before his ETS date.  The available evidence shows the applicant was discharged less than 2 months prior to his ETS date.  However, prior to discharge he was counseled on numerous occasions in regard to his poor personal appearance, personal hygiene, attention to detail, and driving a military vehicle without a license on more than one occasion.  The available evidence further indicates he accepted NJP on three occasions and he persisted in his desire to leave the service.  Such conduct certainly warrants an administrative separation from the Army.



2.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  The available evidence confirms that his rights were protected throughout the discharge process.

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)                                         AR20100011436



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ABCMR Record of Proceedings (cont)                                         AR20100011436



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