IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100027483 


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 states he was told his discharge would be upgraded; it has been over 19 years since he was discharged.

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 was born on 21 January 1967 and he enlisted in the Regular Army in Newburgh, New York on 28 February 1989 for a period of 3 years and 14 weeks, training as a cannon crewman and assignment to Alaska.  
3.  He completed one-station unit training (OSUT) at Fort Sill, Oklahoma and he was transferred to Fort Wainwright, Alaska on 23 June 1989.

4.  On 22 September 1989, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty on four occasions.

5.  On 30 April 1990, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer (NCO).

6.  On 29 October 1990, NJP was imposed against him for disobeying a lawful order from the Garrison Commander.  He was told not to drive on post.

7.  On 15 January 1991, NJP was imposed against him for failure to go to his place of duty.

8.  On 16 January 1991, NJP was imposed against him for the wrongful use of marijuana.

9.  On 26 February 1991, 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 (Enlisted Separations), chapter 13, for unsatisfactory performance.  He cited the applicant’s disciplinary record as the basis for his recommendation.

10.  After consulting with defense counsel the applicant elected not to submit a statement in his own behalf.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a General Discharge Certificate and that he understood that he could make application to the Army Discharge Review Board (ADRB) and to this Board for an upgrade of his discharge and realized that an act of consideration by either board did not imply his discharge would be upgraded.

11.  The appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

12.  Accordingly, on 14 March 1991, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had served 2 years and 17 days of total active service.

13.  On 16 October 1997, he applied to the ADRB for an upgrade of his discharge so that he could obtain veterans benefits.  On 23 June 1998, after reviewing all of the facts and circumstances of his case, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request.

14.  Army Regulation 635-200, chapter 13, in effect 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.

15.  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.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed in such a short period 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 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)                                         AR20100027483



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ABCMR Record of Proceedings (cont)                                         AR20100027483



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