IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100015631 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was 21 years old, married, and had twin daughters at the time he enlisted in the Army.  He went to get his family while attending advanced individual training and he did not have enough money to buy a car, furniture, and pay the rent.  He was stressed out and depressed and started drinking more and more.  He was late for formations and became unmotivated.    He states he needs his discharge upgraded so that he may be eligible for benefits, such as medical care and a home loan.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 August 1986.

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 23 November 1984, at the age of 21.  He was married and had twin daughters who were born 12 days prior to his enlistment.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 62B (Construction Equipment Repairer).  On 3 May 1985, he was assigned to the 326th Engineer Battalion at Fort Campbell, KY.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on:

* 27 January 1986 for failure to be at his appointed place of duty
* 21 May 1986 for wrongful use of marijuana, being absent without leave (AWOL) from on or about 22 March to 24 March 1986, and being absent from his appointed place of duty

4.  On 1 July 1986, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

5.  On 11 August 1986, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions Chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), unsatisfactory performance.  The commander stated his recommendation for discharge was based on the applicant having been counseled on several occasions for his poor performance, being AWOL, failure to repair, missing formation, and a lack of motivation.  The commander stated the applicant constantly violated regulations and SOP's [standing operating procedures] and he had used illegal drugs.

6.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge
7.  On 13 August 1986, the applicant submitted a statement acknowledging that he had been afforded and he declined the opportunity to consult with counsel prior to making his elections.  He elected not to submit statements in his own behalf.

8.  The applicant further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded

9.  On 15 August 1986, the applicant's commander recommended him for discharge due to unsatisfactory performance.  The commander stated the applicant had been counseled on several occasions concerning his poor performance, being AWOL, failure to repair, missing formation, and a lack of motivation.  The commander requested that the requirements for a rehabilitative transfer be waived because the applicant had not displayed the motivation nor the desire to improve his poor performance and he would only be detrimental to his current or any other unit.

10.  On 20 August 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

11.  On 26 August 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He 
had completed 1 year, 9 months, and 2 days of active service that was characterized as under honorable conditions.  He had 2 days of time lost.

12.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, 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
* 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 was characterized as honorable or under honorable conditions.

14.  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 his general discharge should be upgraded to an honorable discharge.  He contends he was married and had twin daughters at the time of his enlistment.  He contends he needs an upgrade to receive medical and home loan benefits.

2.  The applicant’s age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly issued discharge.

3.  According to the applicant's commander the applicant failed to respond to counseling and NJP under the UCMJ and continued to function and perform in a substandard manner.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.



5.  The ABCMR does not upgrade discharges solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the Department of Veterans Affairs.

6.  In view of the above, there is insufficient basis to upgrade the applicant's 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)                                         AR20100015631



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ABCMR Record of Proceedings (cont)                                         AR20100015631



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