DOCKET NUMBER:  AR20100011697 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was a good "trooper" while he was in the service.  He adds he loved the Army and enjoyed jump school.  After completing jump school, he was sent to Fort Bragg, NC and he got stuck in the mess hall.  However, he joined the military to become an infantry Soldier, not a cook.  The applicant believes he would have been a good Soldier, if he had been allowed to remain in the infantry. 

3.  The applicant does not provide any additional evidence in support of his appeal. 

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 record shows he enlisted in the Regular Army on 29 July 1981.  Upon completion of initial entry training, he was awarded military occupational specialty 11B (Infantryman).

3.  A Certificate of Training shows the applicant successfully completed the Food Service Specialist course from 11 January to 5 March 1982.

4.  On 9 July 1982, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 30 June to 6 July 1982.  His punishment consisted of reduction to the rank of private (suspended for 90 days), a forfeiture of $125.00 pay, 7 days of confinement, and 7 days of extra duty.

5.  On 9 September 1982, NJP was imposed against the applicant for being AWOL from 30 August to 3 September 1982.  His punishment consisted of 
14 days of extra duty. 

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 November 1982, shows the applicant was cleared for separation.  The medical doctor opined the applicant was mentally responsible and he had the mental capacity to understand and participate in separation proceedings.  The following blocks were checked on the evaluation form:

* Behavior - normal
* Level of alertness - fully alert
* Level of orientation - fully oriented
* Mood or affect - unremarkable
* Thinking process - clear
* Thought content - normal
* Memory - good

7.  On an unspecified date, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsatisfactory performance.  

8.  On 16 November 1982, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, he waived his right to have his case considered by a board of officers, a personal appearance before a board of officers, and to counsel.  He elected not to submit statements on his behalf.  The applicant acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  

9.  On 16 November 1982, the company commander recommended that the applicant be separated due to unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  The commander stated the applicant's performance and dependability were totally unsatisfactory.  He said the applicant's integrity was nonexistent and the number of bad checks he accumulated was uncountable.  Additionally he attached eight counseling forms to support his belief that a change in the applicant's unit would not affect his conduct.

10.  In one of the attached monthly counseling statements, dated 6 July 1982, the counselor said the applicant's actions for the month of June were displeasing.
He added the applicant was malingering and did not want to fulfill his responsibilities as a cook.  The counselor stated the applicant used the sorry excuse that he did not like to cook, but volunteered to become a cook because he figured it would be easier than his primary MOS, 11B.  He said once the applicant found out cooks work also, he immediately started shirking his duties.

11.  On 16 November 1982, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, with the issuance of a General Discharge Certificate.  

12.  The applicant's DD Form 214 shows he was issued a general discharge on
7 December 1982.  The applicant had completed 1 year, 3 months, and 23 days of creditable active service with the periods of 14 June to 15 June 1982, 
30 June to 5 July 1982, 6 July to 8 July 1982, 30 August to 1 September 1982, and 14 October to 16 October 1982 listed as lost time. 

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 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.

15.  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 argues, in effect, that his discharge should be upgraded because he was assigned as a cook instead of an infantry Soldier.  However, the available evidence indicates the applicant volunteered to work as a cook and successfully completed the Food Service Specialist course.  Nevertheless, there is no evidence and the applicant has not provided any to show his assignment as a cook contributed to his misconduct and lack of performance.

2.  The available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

3.  The applicant's record of indiscipline which includes two Article 15s, over 
12 days of lost time, and numerous counseling statements does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20100011697



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ABCMR Record of Proceedings (cont)                                         AR20100011697



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