IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023886 


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 to assist him in the filing of his disability claim.

2.  He states he was injured during physical training.  He also states his collarbone was broken while leaving the motor pool when he was struck from behind by a jeep.  Afterwards he was unable to perform his military duties to his full potential and was given a general discharge under honorable conditions.

3.  He provides no additional documents.

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.  His record shows he enlisted in the Regular Army on 22 January 1981.  
He completed the training requirements and he was awarded military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).

3.  His disciplinary history includes adverse counseling statements for the following offenses:

* failure to report to his appointed place of duty at the time prescribed on numerous occasions
* failure to obey a lawful order 

4.  His record contains five Standard Forms (SF) 600 (Chronological Record of Medical Care) which shows on:

* 12 February 1982, he was hit by a car and bruised his back, he was treated and released
* 16 March 1982, he hit his hand on a jeep, his finger was swollen, he was treated and released
* 24 April 1982, he had pain in his foot pain, he was treated and released
* 27 April 1982, he injured his shoulder playing racquetball after slamming it into a wall, he was treated and released

5.  On 19 August 1983, he was released from civilian confinement after being charged with possession of marijuana.

6.  On 23 February 1984, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited possession of marijuana and decreased performance as the basis for this action.  The unit commander also informed the applicant that he could receive a General Discharge Certificate.  The unit commander advised the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, and to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action.  He was also advised that he could waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

7.  On the same date, his unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited his disciplinary history, failure to respond to counseling, and inability to conform to acceptable standards of Soldiering as the basis for this action.

8.  Having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation action, its effects, and the rights available to him.  He was also informed that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He submitted a statement in his own behalf, wherein he expressed that he believes he was being treated unfairly due to a personality conflict between him and his supervisor.

9.  His record contains an SF 88 (Report of Medical Examination) which shows in:

* Item 5 (Purpose of Examination) - Chapter
* Item 6 (Date of Examination) - 27 February 1984
* Item 38 (Clinical Evaluation) – Abnormal - spine. Other musculoskeletal
* Item 73 (Recommendation – Further Specialist Examinations Indicated)
* Veterans Affairs follow up, Orthopedic for back pain
* Item 77 (Examinee) is qualified for separation

10.  On 2 March 1984, the separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, with a General Discharge Certificate.

11.  On 9 March 1984, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 shows he was issued a General Discharge Certificate.  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JHJ."  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."

12.  There is no evidence that he applied to the Army Discharge Review Board for upgrade of his discharge.

13.  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.

14.  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 contention that his discharge should be upgraded because he was injured while he was on active duty and he needs the upgrade to assist him in filing his disability claim was found to lack merit.

2.  The applicant was not discharged based on his injuries.  He was discharged due to unsatisfactory performance due to possession of marijuana, numerous counseling statements, and decreased performance.

3.  The applicant's medical records show he received treatment for his back, shoulder, foot, and hand and that he was treated and released.  There is no evidence that indicates he had any medical conditions that required treatment at the time of separation or that his injuries contributed to his misconduct or impeded his ability to perform.

4.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  Additionally, every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 

6.  Based on the foregoing, there is insufficient basis to grant 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)                                         AR20100023886



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1