IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100012622 


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 to an honorable discharge (HD).

2.  The applicant makes no contentions.

3.  The applicant provides no documents.

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 (RA) on 9 October 1986.  He was trained in and served in military occupational specialty 11B (Infantryman).
3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions for failing to go at the time prescribed to his appointed place of duty and for being absent without leave (AWOL).

4.  The applicant’s record also shows he was formally counseled four times during the period 27 August 1991 to 25 June 1992 for a myriad of disciplinary infractions that include:

* mediocre duty performance
* being AWOL
* being drunk
* failure to appear in court

5.  On 16 June 1992, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

6.  The unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance with a GD.  The unit commander cited the following reasons:

* his receipt of a field grade NJP for failing to go to his Primary Leadership Development Course departure formation on 15 July 1991
* his rehabilitation transfer in August 1991
* his 27 August 1991 counseling for being poorly prepared for inspection
* missing formation on 5 September 1992
* civilian arrest for missing a mandatory court appearance for driving while under the influence (DWI)
* for being AWOL 

7.  On an unknown date, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive representation by counsel.

8.  On an unknown date, the separation authority approved the applicant's separation action, waived further rehabilitation requirements, and directed that the applicant be issued a GD Certificate.

9.  Accordingly, on 13 August 1992, the applicant was discharged.  He had completed 5 years, 10 month, and 3 days of creditable active duty service.  The DD Form 214 confirms the narrative reason for his separation was "unsatisfactory performance."

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13 provided 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 would be characterized as honorable or under honorable conditions.

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 evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant was provided an opportunity to consult with legal counsel.  He was advised of the basis for the contemplated separation action and of the rights available to him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Further, the applicant's record includes two NJP's, evidence of a DWI charge, and a civilian arrest during the applicant’s period of military service.  Clearly, the applicant's misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.  His service did not support the issuance of an HD by the separation authority at the time of discharge and it does not support an upgrade now.

3.  In view of the forgoing, 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)                                         AR20100012622



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ABCMR Record of Proceedings (cont)                                         AR20100012622



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