IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100018240 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states his battalion commander gave him the opportunity to defend himself at the time, but under the circumstances, he just got his discharge and ran.  He states it was a bad situation for him because he was in constant conflict with his platoon sergeant and he had received a bad review.

3.  The applicant provides no 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 enlisted in the Regular Army on 7 February 1978 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).  He reenlisted on 19 November 1980 for a period of 4 years.

3.  The applicant completed a 14-month tour of duty in Germany and, on 
1 January 1982, he was assigned to Combat Support Company, 1st Battalion, 8th Infantry at Fort Carson, CO.  He was promoted to sergeant (SGT)/E5 on 9 September 1981.

4.  On 2 July 1982, the applicant received formal counseling from his section sergeant concerning his short temper.

5.  The applicant received a DA Form 2166-6 (Enlisted Evaluation Report) as a SGT for the period January 1982 through November 1982.  The rater stated the applicant had been counseled several times by different noncommissioned officers (NCOs) and officers concerning his military appearance.  The indorser stated he had counseled the applicant several times about his appearance, attitude, and initiative, but it seemed to do little or no good.

6.  On 17 November 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

* wrongfully and unlawfully making, under lawful affirmation, a false statement
* failing to obey a lawful command from a commissioned officer
* failing to go at the time prescribed to his appointed place of duty

His punishment consisted of forfeiture of $427.00 pay per month for 2 months, suspended until 17 May 1983; reduction to specialist four (SP4)/E-4; and 
45 days extra duty.

7.  On 27 January 1983, the applicant was evaluated by a colonel of the Medical Corps, Chief, Department of Psychiatry at the Community Mental Health Activity. The examiner found that 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 had the mental capacity to understand and participate in board proceedings.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  On 9 March 1983, the applicant received formal counseling from his commander for:

* destruction of private property
* apathy towards superiors and the military
* bad check writing

9.  The applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

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

* consult with a consulting counsel
* submit statements in his own behalf
* be represented by counsel or to waive any of these rights
* withdraw any waiver of these rights at any time prior to the date the discharge authority directs or approves his discharge

The commander advised him the least favorable characterization of service or description of separation he would receive as a result of this action was a general discharge under honorable conditions.

11.  The applicant, after having been advised by counsel, submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance.  The applicant indicated that he was not submitting a statement in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

12.  The applicant's commander recommended the applicant be eliminated from the U.S. Army under the provisions of Army Regulation 635-200, chapter 13.  The commander stated that since the applicant's arrival in the unit, the quality and consistence of his duty performance had been unacceptable and substandard.  He had responded poorly to various implemented rehabilitative measures.  His appearance, conduct, and performance standards are invariably the object of reprehension and disapproval, frequently involving him in highly questionable encounters with his entire chain of command.

13.  The appropriate authority approved the applicant's discharge for unsatisfactory performance and directed the applicant receive a General Discharge Certificate.

14.  On 14 April 1983, the applicant was discharged accordingly by reason of unsatisfactory performance.  He had completed 5 years, 2 months, and 8 days of total active service that was characterized as under honorable conditions.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7a, states 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 in constant conflict with his platoon sergeant.  However, he submitted no evidence to support his contention.

2.  According to the applicant's commander the applicant failed to respond to counseling from different NCOs and officers and to rehabilitative measures.  

3.  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 tend to jeopardize his rights.

4.  The applicant had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence and was reduced in grade due to his failure to obey orders and making a false statement.  Therefore, in view of the applicant's abuse of a position of trust there is no basis to upgrade the applicant's general discharge 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)                                         AR20100018240



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ABCMR Record of Proceedings (cont)                                         AR20100018240



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