BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100014147 


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 discharge be upgraded to honorable.

2.  He states he was a good Soldier and never received any action under the Uniform Code of Military Justice (UCMJ).  He adds he would like his discharge upgraded so he can seek employment and receive other benefits. 

3.  He does not provide any additional evidence in support of his application. 

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 and entered active duty on 29 June 1972.
3.  On 10 September 1973, the commander recommended the applicant be separated from the Army under the provisions of DA message, dated 242110Z September 1971, Subject:  Extension of the Qualitative Management Program to Grade E-1 and E-2.  The commander stated that there was no improvement in the applicant's performance since his last counseling sessions.  He opined that the applicant was a substandard Soldier and held no future salvage value to the Army.  The commander listed the following counseling sessions as justification for his recommendation:

* 23 February 1973, direct refusal to clean the barracks as scheduled
* 7 March 1973, refusal to carry out duties while working in the dining facility
* 18 April 1973, insubordinate to a noncommissioned officer, absent without leave from his place of duty, and refusal to obey a lawful order
* 20 April 1973, 30 minutes late for duty
* 25 April 1973, failure to follow orders and barracks cleaning responsibilities
* 25 June 1973, responsibilities as barracks orderly and denial of promotion recommendation due to his past performance
* 12 July 1973, counseled by chain of command on performance and explained it was his fourth job and last chance in the unit

4.  On 5 October 1973, the separation authority directed the applicant be discharged and issued a General Discharge Certificate due to failure to demonstrate adequate potential for promotion advancement.

5.  Accordingly, the applicant was discharged on 18 October 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in the rank/grade of PVT/E-2 under the provisions of DA message, dated 242110Z September 1971, with a character of service of under honorable conditions.  This form further confirms he completed a total of 1 year, 3 months, and 20 days of creditable active military service.

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

7.  Army Regulation 600-200 (Enlisted Personnel Management), chapter 4, in effect at the time, set forth policy and prescribed procedures for denying reenlistment under the Qualitative Management Program.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to enhance the quality of the career-enlisted force, selectively retain the best-qualified 
Soldiers to 30 years of active duty, deny reenlistment to nonprogressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service.

8.  DA message, dated 242110Z September 1971, in effect at the time, contained the Army policy that authorized the separation of enlisted personnel for failure to demonstrate adequate potential for promotion advancement.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 5 of that regulation, which was further expanded by the DA message, provided authorization for separation for the convenience of the government.  It provided, in pertinent part, for a discharge based on failure to demonstrate promotion potential and meet acceptable standards for retention.  A general discharge under honorable conditions was normally issued.

10.  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 he was a good Soldier and never received any action under the UCMJ.  Although the evidence of record shows he did not receive punishment under the UCMJ, he was counseled on seven occasions concerning his job performance, refusal to clean the barracks, failure to follow orders, and/or insubordination.  His actions were not indicative of a "good" Soldier and, therefore, his claim is not supported by the available evidence. 

2.  Additionally, he claims his discharge should be upgraded so he can get a job and receive benefits.  There are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of getting a job and securing benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.




3.  The evidence of record confirms his discharge processing was accomplished in accordance with the Army policy in effect at the time.  Lacking independent evidence to the contrary, it appears that all requirements of law and regulation were met, and his rights were fully protected throughout his separation processing.

4.  Based on this record of indiscipline, his service clearly 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)                                         AR20100014147





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ABCMR Record of Proceedings (cont)                                         AR20100014147



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