IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100017200 


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 did not ask to be discharged
* he did his best as a Soldier
* he was proud to be airborne
* he made some mistakes and bad judgments

3.  The applicant provides 2 character reference letters and a Certificate of Achievement.

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 7 July 1981 for a period of
3 years.  He completed the required training and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained was private first class (PFC)/E3.

3.  On 23 July 1982, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a noncommissioned officer.

4.  Between November 1982 and July 1983 the applicant received 1 general counseling statement, 1 Article 15 for being negligent in the performance of his duties, and 1 letter of reprimand for a driving while intoxicated (DWI) incident.

5.  On 2 August 1983, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The unit commander stated his reason for taking the action was the applicant's inability to expend efforts constructively and patterns of substandard performance of duty.  

6.  On 2 August 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The applicant elected not to make a statement in his own behalf and acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a general discharge.

7.  On 12 August 1983, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, with a general discharge.  The DD Form 214 he was issued shows he was discharged on 25 August 1983 with a general discharge in accordance with the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  He had served 2 years, 1 month, and 19 days of total active service.

8.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

9.  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.

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's request that his general discharge should be upgraded to honorable and the character reference letters were carefully considered and found to be without merit.

2.  By regulation, commanders will separate a member under Army Regulation 635-200, chapter 13, when in the commander's judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

3.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he consulted with legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.



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)                                         AR20100017200



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ABCMR Record of Proceedings (cont)                                         AR20100017200



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