IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028308 


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 an honorable discharge.

2.  He states he was misinformed about the process, he was told his discharge would be automatically upgraded because it was under honorable conditions.

3.  He does not provide any additional evidence.

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’s record shows he enlisted in the Regular Army and entered active duty on 5 April 1983.  
3.  On 9 January 1984, he underwent a mental status evaluation and he was determined to be mentally cleared for separation.

4.  On 10 February 1984, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance.  The commander stated his recommendation was based on the applicant's refusal of two lawful orders, failure to repair, writing bad checks, one larceny charge, and bar to reenlistment for indebtedness. 

5.  On 15 February 1984, after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, the applicant elected to submit a statement on his behalf.  He acknowledged that he understood he may encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood if he received a less than honorable discharge he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply his discharge would be upgraded.  The applicant also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

6.  In an undated statement, the applicant requested that he be allowed to remain in the Army.  He explained that he had some financial problems, but his debts had been cleared either by payment or verbal/written agreements.  He concluded by stating that if he was given an opportunity to remain in the Army, he would continue to perform his duties as he had in the past.

7.  On 27 March 1984, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13.  He directed that the applicant be furnished a General Discharge Certificate.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 3 April 1984 under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance.  He was credited with completing 11 months and 29 days of active service. 

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 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 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

2.  His entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.

3.  His record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  At the time of discharge, the applicant acknowledged he understood if he received a less than honorable discharge he could make an application to the ADRB or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply his discharge would be upgraded.  There is no evidence that he was told his discharge would automatically be upgraded.




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)                                         AR20100028308



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ABCMR Record of Proceedings (cont)                                         AR20100028308



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