IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012750 


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 under honorable conditions discharge be upgraded.

2.  The applicant states he was advised that his discharge would be automatically upgraded after 6 months and the characterization would be changed from general under honorable conditions to honorable.

3.  The applicant did not provide any additional documentary evidence in support of his case.

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 records show he enlisted in the Regular Army on 4 November 1980.  He completed basic armor training.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for the offenses indicated:

	a.  on 18 July 1983, for failing to go at the time prescribed to his appointed place of duty on 13 July 1983;

	b.  on 12 September 1983, for being absent without leave (AWOL) during the period 24 August 1983 through 25 August 1983;

	c.  on 15 September 1983, for failing to go at the time prescribed to his appointed place of duty on 24 August 1983; and

	d.  on 24 February 1984, for disobeying a lawful order on leave on 18 January 1984.

4.  The applicant's records show he was counseled on 10 occasions for failing to be to formation on time, failing to following instructions, failing to maintain belongings in a military manner, and needing improvement on gunnery skills.

5.  On 28 February 1984, he received a DA Form 4126-R (Bar to Reenlistment Certificate) informing him he was in a non-promotable status, and he was advised of the factual and relevant indicators of untrainability or unsuitability.  The bar to reenlistment indicates the following:

* his failure had been marked by four Article 15's
* he was counseled on numerous occasions in an attempt to make him appear at his duty site at the prescribed time
* his leaders met with little compliance in their requirements for him to maintain his living quarters to acceptable standards

6.  On 27 March 1984, the applicant's immediate commander notified him of his intention to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct for minor disciplinary infractions and conduct prejudicial to good order and discipline.



7.  On 6 April 1984, the applicant acknowledged receipt of the commander's intent to separate him.  He was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board, a personal appearance before a separation board, and submission of a statement on his own behalf.  He later requested a board only if he was to receive a discharge under other than honorable conditions.

8.  On 27 April 1984, his discharge packet was forwarded as he had failed to submit any statements on his behalf. 

9.  The separation approval authority's action is not available; however, on 6 June 1984 the applicant was discharged under honorable conditions.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 3 years, 7 months, and 1 day of creditable active service and that he accrued a total of 2 days of time lost.

10.  The applicant provided a personal statement which indicates he was forced out by his first sergeant, having only 2 to 3 months before the end of his enlistment, and he was advised that his characterization would be changed 6 months after his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 as he was advised at the time of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he waived his right to consult with legal counsel.  It further shows the applicant acknowledged the basis for the contemplated separation action and its possible effects.  The record 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 undistinguished service.

4.  Based on his record of misconduct, the applicant's service clearly did 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)                                         AR20100012750



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ABCMR Record of Proceedings (cont)                                         AR20100012750



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