IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100016647 


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 served without issues other than his learning disability which prevented him from succeeding in completing advanced individual training (AIT).

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

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 for a period of 3 years on            21 November 1984.  Records show the applicant was 20 years of age at the time of his enlistment.  The applicant completed basic combat training and was eliminated from the military occupational specialty (MOS) 93J (Radar Controller) course in AIT due to unsatisfactory performance and academic failure.  The highest rank/grade he attained was private (PV2)/E-2.

3.  On 6 June 1985, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 13 for unsatisfactory performance.  The company commander stated that the reason for his recommendation was the applicant's elimination from the 93J course due to unsatisfactory performance and academic failure.  The company commander further stated that the applicant was unwilling to conform to military standards due to a lack of motivation and morale.

4.  On 6 June 1985, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unsatisfactory performance.  The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  The applicant’s legal counsel also affixed his signature to the document.

5.  On 12 June 1985, the separation authority waived the counseling and rehabilitation requirements and approved the discharge under the provisions of Army Regulation 635-200, paragraph 13, with issuance of a general, under honorable conditions discharge.

6.  The applicant’s DD Form 214 shows he entered active duty on 21 November 1984 and he was discharged on 18 June 1985 with a general, under honorable conditions discharge under the provisions of Army Regulation 635-200,
chapter 13, by reason of unsatisfactory performance.  He completed 6 months and 28 days of net active service.  The applicant did not have any time lost during this enlistment. 

7.  The applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.  On 14 May 1987, the ADRB denied the applicant’s request for an upgrade of his discharge.

8.  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, provides 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 will be characterized as honorable or under honorable conditions.

9.  Army Regulation 625-200, 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 that his general discharge should be upgraded to an honorable discharge.  He states he served without issues other than his learning disability which prevented him from succeeding in completing the 93J course in AIT.

2.  There is no evidence and the applicant did not submit any evidence to support his contentions that he had a learning disability that prevented him from successful completion of AIT.

3.  The applicant’s administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected throughout separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100016647



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ABCMR Record of Proceedings (cont)                                         AR20100016647



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