BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100030219 


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 states there is no error or injustice.  He adds that it has been 27 years since his separation, his first 3-year tour was honorable, and that after his reenlistment he made some foolish decisions and poor judgment calls.  He further states that he regrets leaving the Army, especially in the fashion that he did. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 5 December 1979.  He completed initial entry training and he was awarded military occupational specialty 91B (medical specialist).  On 2 December 1982, he reenlisted for a period of 3 years.  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  He was counseled on numerous occasions for not showing up for duty, indebtedness, and acquiring an emergency loan from the Red Cross to visit his mother and sick step-father whom he did not visit.  It was later learned that his step-father was not ill and that he had spent the emergency loan money on family wants and needs.

4.  He accepted nonjudicial punishment on two occasions during the period 15 August and 3 October 1983 for failing to go at the time prescribed to his appointed place of duty on two occasions; for stealing seven 5-gallon cans of mobility gasoline (mogas), one hydraulic jack, and one grease gun; and for wrongfully appropriating an M886 ambulance.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 24 August 1983, indicated he was barred from reenlistment due to nonjudicial punishment and a letter of indebtedness.  The certificate further indicated he did not exhibit those traits of responsibility and maturity normally found in Soldiers of his rank and experience.  The certificate further indicated he had not been able to successfully handle his personal life and financial matters in a way which would portray him as a financially responsible Soldier.  It continued by indicating his performance and attitude had continually declined and that in the best interest of the unit and the U.S. Army he should be denied reenlistment or extension.

6.  On 16 November 1983, the applicant's commander informed him that he was recommending his separation from military service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  His commander indicated the reasons for his proposed action were that the applicant's ability to perform duties effectively in the future, including his potential for advancement or leadership, was unlikely.

7.  On 16 November 1983, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action taken by him in waving his rights.  He waived his rights in conjunction with this action.  He did not elect to submit a statement in his own behalf.  He acknowledged that he 


understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

8.  On 22 November 1983, the separation authority approved the recommendation for separation under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance.  He directed the applicant be released from active duty, transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), and be issued a General Discharge Certificate.

9.  On 13 December 1983, he was released from active duty under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with his characterization of service of under honorable conditions.  The DD Form 214 issued to him shows he completed 4 years and 9 days of creditable active service.

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

11.  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.

12.  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 records indicate he was counseled in regard to his repeated failure to go at the time prescribed to his appointed place of duty, indebtedness, and acquiring an emergency loan under false pretense.  His record shows he accepted nonjudicial punishment on two occasions.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  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)                                         AR20100030219



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ABCMR Record of Proceedings (cont)                                         AR20100030219



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