BOARD DATE: 19 October 2010
DOCKET NUMBER: AR20100011784
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 (GD) be upgraded.
2. The applicant states due to a dispute over his bonus he was wrongfully jailed.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three letters of recommendation.
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 applicant enlisted on 7 March 1980, completed training, and was awarded military occupational specialty 54E (Nuclear, Biological, and Chemical Specialist).
3. On 29 September 1982, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for assault.
4. On 24 June 1983, the applicant was awarded the Good Conduct Medal.
5. Between June 6 and 24 August 1983, the applicant received negative counseling statements on five occasions for failure to go to his appointed place of duty, failure to obey a lawful order, failure to go to his place of duty at the appointed time, and disrespectful language toward a superior noncommissioned officer.
6. On 25 August 1983, a summary court-martial found the applicant guilty of failure to go to his appointed place of duty on three occasions and communicating a threat. His sentence included 30 days confinement and reduction to pay grade E-1.
7. On 30 August 1983, his command initiated discharge proceedings under Army Regulation 635-200, chapter 13, for unsatisfactory performance, citing failure to adapt to military regulations, failure to conform to military standards, and continued misconduct as reasons for his separation. The applicant refused to sign the acknowledgement of notification line on the form.
8. On 7 October 1983, the discharge authority waived the rehabilitative transfer requirement and approved a discharge under honorable conditions (GD).
9. The applicant was discharged with a GD on 14 October 1983. He had 3 years, 6 months, and 17 days of creditable service with 25 day of lost time.
10. The letters of recommendation provided by the applicant describe him as a considerate dedicated worker with an image of responsibility towards his work, family, and community.
11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policy and sets forth the procedures for the administrative separation of enlisted personnel.
a. Chapter 3, outlines the criteria for characterization of service as follows:
(1) paragraph 3-7a states that an honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty;
(2) paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and
b. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commanders 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states due to a dispute over his bonus he was wrongfully jailed.
2. The applicant was incarcerated as a result of a court-martial sentence for failure to go to his appointed place of duty on three occasions and communicating a threat. There is no indication he had any dispute over any bonus or he was wrongfully jailed.
3. It is good to know that he has developed a good reputation in his community; however, good citizenship is not in and of itself sufficiently mitigating to warrant an upgrade of his discharge.
4. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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) AR20100011784
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ABCMR Record of Proceedings (cont) AR20100011784
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