BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029018 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant made no statements on his application.

3.  The applicant provides no additional 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.  He enlisted in the Regular Army on 8 April 1981 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded 

military occupational specialty 76C (Equipment Records and Parts Specialist).  He immediately reenlisted on 4 September 1984 for a period of 3 years.

3.  On 23 May 1985, the applicant received a mental status evaluation.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

4.  He accepted nonjudicial punishment (NJP) on:

* 5 April 1985 for failing to go at the time prescribed to his appointed place of duty
* 4 June 1985 for breaking restriction
* 8 July 1985 for going, without authority, from his appointed place of duty

5.  His commander notified him he was initiating action to discharge him under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander stated his recommendation for discharge was based on the applicant's absence from his place of duty and poor performance.  He stated all other attempts to make him a useful Soldier had failed.  He had been given every opportunity to improve his conduct/duty performance.  He had been counseled to no avail.

6.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

7.  The applicant acknowledged he had been advised by consulting counsel:

* of the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects
* of the rights available to him
* the effect of any action taken by him in waiving his rights

He elected not to submit statements in his own behalf.

8.  The applicant further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded

9.  The applicant's executive officer submitted an undated statement concerning the applicant's separation.  He stated that on several occasions the applicant either missed formation completely or he was late for formations.  These instances were handled through counseling statements or by the motor sergeant. He stated the applicant gave him the impression that he had no regard for the Uniform Code of Military Justice.

10.  His commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, for poor performance.

11.  On 31 July 1985, the appropriate authority:

* waived a rehabilitative transfer
* approved the recommendation for discharge
* directed the issuance of a General Discharge Certificate

12.  On 15 August 1985, he was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He completed 4 years, 4 months, and 8 days of creditable active service that was characterized as under honorable conditions.

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.  According to the applicant's executive officer the applicant failed to respond to counseling and NJP and continued to function and perform in a substandard manner.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4. In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100029018



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ABCMR Record of Proceedings (cont)                                         AR20100029018



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