IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100014985 


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 general discharge be upgraded to honorable.

2.  The applicant states:

* he was a nuclear, biological, and chemical (NBC) specialist forced to be in the infantry against his will
* he became unmotivated and did something very minor to make sure he would get out of the Army as soon as possible
* he was severely punished with a general discharge

3.  The applicant provides a diploma from the U.S. Army Chemical School 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 enlisted in the Regular Army on 13 September 1983 for a period of 3 years and training in military occupational specialty (MOS) 54E (NBC specialist).

3.  While in advanced individual training (AIT) on 7 February 1984, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order.

4.  While in AIT on 24 February 1984, NJP was imposed against the applicant for using reproachful words and failing to obey a lawful order.

5.  The applicant was awarded MOS 54E on 28 March 1984.  He was subsequently assigned to the 506th Infantry and 502nd Infantry at Fort Campbell, Kentucky, for duty in MOS 54E.

6.  On 22 May 1984, the applicant was counseled for poor performance and dereliction of duty; he had been expelled from the post U.S. Forces Command (FORSCOM) NBC School for missing classes on 16 May 1984.

7.  On 1 June 1984, the applicant was counseled for being late for morning formation.

8.  On 19 July 1984, NJP was imposed against the applicant for using marijuana.

9.  On 3 August 1984, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  The unit commander cited the applicant was not eligible to reenlist and he was disruptive to discipline and order in the unit.

10.  On 3 August 1984, the applicant consulted with counsel and waived his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected not to submit a statement in his own behalf.

11.  On 7 August 1984, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

12.  Accordingly, the applicant was separated with a general discharge on 15 August 1984 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He served a total of 11 months and 3 days of creditable active service.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

15.  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 contends he was an NBC specialist forced to be in the infantry against his will.  However, NBC specialists are assigned to various Army units, not just chemical units.

2.  The applicant contends he became unmotivated and did something very minor to make sure he would get out of the Army as soon as possible.  However, smoking marijuana is not a minor offense, especially for an NBC specialist.

3.  The applicant's brief record of service included adverse counseling statements and three NJP's.  He was also expelled from the post FORSCOM NBC School.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons were therefore 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)                                         AR20100014985



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ABCMR Record of Proceedings (cont)                                         AR20100014985



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