IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030228 


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 honorable.

2.  The applicant states:

* When he got orders to Germany he was told the tour was 10 months unaccompanied but when he arrived in Germany the tour was 3 years unaccompanied
* He received a hardship discharge
* He was informed his discharge would be automatically changed after a few years 

3.  The applicant provides no documentary 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.  Having prior service in the Army National Guard, he enlisted in the Regular Army on 6 October 1981 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  

3.  On 5 June 1982, he was apprehended by civilian authorities for robbery.  He was held in civilian confinement from 5 June 1982 through 5 July 1982.

4.  He arrived in Germany on 27 February 1983.

5.  On 10 August 1983, he was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The specific reason cited by his unit commander was misconduct.

6.  He consulted with counsel and acknowledged notification of his pending separation.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He also elected not to submit a statement in his own behalf.  

7.  On 15 August 1983, he underwent a psychiatric evaluation and the psychiatrist found no evidence of a psychiatric illness which would warrant disposition through medical channels.  The psychiatrist also concluded "At the present time the SM [service member] cannot be fully evaluated with respect to the hardship discharge since there is no medical information available as to the wife's condition."

8.  On 1 September 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

9.  He departed Germany on 15 September 1983.

10.  He was issued a general discharge on 16 September 1983 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 1 year, 10 months, and 11 days of creditable active service with 31 days of lost time.  

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

12.  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.

13.  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.  

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he received a hardship discharge, the evidence of record shows he acknowledged notification of his proposed discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and he was advised by counsel of the basis for this contemplated separation with a general discharge certificate and its effect and the rights available to him.  In addition, his psychiatric evaluation, dated 15 August 1983, states "At the present time the SM cannot be fully evaluated with respect to the hardship discharge since there is no medical information available as to the wife's condition."

2.  He contends he was told his discharge would be automatically changed after a few years.  However, a discharge upgrade is not automatic.



3.  His record of service included 31 days of lost time.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.    

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20100030228



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ABCMR Record of Proceedings (cont)                                         AR20100030228



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