IN THE CASE OF:
BOARD DATE: 27 January 2011
DOCKET NUMBER: AR20100018838
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 that his general discharge be upgraded to a fully honorable discharge.
2. The applicant provides no explanation or argument regarding his request for an upgrade of his discharge.
3. The applicant provides no additional documents with 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 in Long Island, New York, on 18 August 1978 for a period of 3 years. He completed his training and remained on active duty through continuous reenlistments. He was advanced to pay grade E-5 on 2 December 1984.
3. On 5 February 1988, while serving an accompanied tour in Germany, he was convicted by a special court-martial of two specifications of failure to go to his place of duty, one specification of committing sodomy, and one specification of wrongfully having intercourse on multiple occasions with a woman who was not his wife. He was sentenced to confinement for 45 days and reduction to pay grade E-1.
4. On 18 March 1988, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance based on his disciplinary record which included his special court-martial conviction and two instances where nonjudicial punishment was imposed against him.
5. After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.
6. The appropriate authority approved the recommendation for discharge on 5 April 1988 and directed that he be furnished a General Discharge Certificate.
7. Accordingly, he was discharged under honorable conditions on 23 May 1988 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He completed 9 years and 8 months of total active service.
8. There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. Chapter 13 at the time established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service. An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A discharge under honorable conditions was normally considered appropriate.
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 administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
2. The applicant's records have been reviewed; however, there is nothing contained within those records which is sufficiently mitigating to warrant relief when compared to his overall record of service. His service simply did not rise to the level of a fully 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 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) AR20100018838
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ABCMR Record of Proceedings (cont) AR20100018838
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