IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011875 


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 an honorable discharge. 

2.  The applicant states he was a good Soldier the first 3 years of service and would like his discharge upgraded to honorable.

3.  The applicant does not provide any additional documentary evidence. 

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 December 1978.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty 45K (Tank Turret Repairman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  Item 9 (Awards, Decorations & Campaigns) of his DA Form 2-1 (Personnel Qualification Record) shows he was awarded the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal (1st Award), and the Marksman Marksmanship Qualification Badge (Rifle). 

4.  His record reveals he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) at Fort Hood, TX as follows:

* On 24 January 1983, for disobeying a lawful order
* On 12 April 1983, for failing to report to his appointed place of duty
* On 13 May 1983, for possession of marijuana

5.  On 28 April 1983, his immediate commander recommended that he be barred from reenlistment.  The commander cited the applicant’s two UCMJ offenses, noted that he gained weight while on the overweight program, failed a promotion board, disregarded Army policies by being late for formations, and failed to follow orders.  On 3 May 1983, the bar to reenlistment was approved by the chain of command and placed in his records.

6.  On 12 May 1983, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2, for unsatisfactory performance.  The commander cited his inability to develop sufficiently to participate satisfactorily in further training and become a satisfactory Soldier. 

7.  On 12 May 1983, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general, under honorable conditions discharge; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

8.  On 17 May 1983, his immediate commander initiated a recommendation for separation under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.  The commander noted all rehabilitation attempts within the company and numerous counseling attempts resulted in failure.

9.  On 18 May 1983, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13 and directed that he be issued a General Discharge Certificate.  On 3 June 1983, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with a general discharge.  He completed a total of 4 years, 5 months, and 5 days of creditable active service with no time lost.

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

11.  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, in pertinent part, 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.  A general or honorable discharge was considered appropriate.

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's contention that his discharge should be upgraded because he was a good Soldier the first 3 years of service was carefully considered.

2.  Although the applicant may have served satisfactorily the first 3 years of his service, it does not mitigate the fact that he demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three occasions for disobeying a lawful order, failure to report, and possession of marijuana.  Accordingly, his immediate commander initiated separation action against him.

3.  The evidence of record further shows his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and his character of service is commensurate with his overall record of military service.
 
4.  Based on his record of substandard performance and record of indiscipline, his service does not meet the standards of acceptable conduct of duty for Army personnel and does not meet the criteria for an honorable discharge.  Therefore, there is insufficient basis to upgrade his discharge 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)                                         AR20100011875



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ABCMR Record of Proceedings (cont)                                         AR20100011875



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