IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021588 


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 his general discharge be upgraded to honorable.

2.  The applicant states, in effect, he requested a discharge upgrade in 1988.

3.  The applicant provides no documentary 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 22 February 1984 for a period of 3 years.  He successfully completed his training and was awarded military occupational specialty 13B (cannon crewman).

3.  On 10 October 1986, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.

4.  He was counseled for various infractions which included disobeying a lawful order, missing formations, missing training/duty, failure to repair, being disrespectful, tardiness, and misconduct (drunk and disorderly).

5.  On 28 January 1987, he was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His unit commander cited his lack of discipline as indicated by his record of Article 15 and poor counseling statements which reflect a failure to improve.

6.  On 28 January 1987, he consulted with counsel and acknowledged notification of his pending separation.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf.  In summary, he stated:

* He wanted to remain on active duty or ETS (expiration term of service) on 6 February 1987 like he was supposed to
* The only Article 15 in his packet shows he initially asked for a court-martial
* The only reason he changed his mind was because a captain told him the Article 15 would not remain in his records
* He was surprised to see it in this packet
* He thinks it is unfair to have the Article 15 in his packet
* If he had known it would be used against him this way he would have demanded court-martial
* He asked that the Article 15 be thrown out and he be given a chance to prove himself at a court-martial    

7.  The separation authority's action is not available.
    
8.  He was discharged with a general discharge on 6 February 1987 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 2 years, 11 months, and 15 days of creditable active service.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.


10.  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.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he requested a discharge upgrade in 1988, there is no evidence and he provided no evidence to support this contention.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.    

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  The applicant's record of service included adverse counseling statements and one NJP.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100021588





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ABCMR Record of Proceedings (cont)                                         AR20100021588



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