IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110000325 


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 under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that a general discharge should be converted to an honorable discharge after a term of 6 months.  He assumed this conversion was standard protocol.

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's records show he enlisted in the Regular Army on 12 September 1979.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 18 May 1983, he received a letter of warning from the Deputy Installation Commander, Fort Lewis, WA, for being involved in a domestic disturbance within the military housing community.

4.  On 21 June 1983, he received a notification of dishonored check letter from the Commissary Officer, Fort Lewis, WA.

5.  His record shows he was formally counseled by members of his chain of command on seven separate occasions between 29 June 1983 and 3 February 1984 for a myriad of performance and conduct related matters that included, but was not limited to, tardiness, failure to follow instructions, failure to keep appointments, failure to obey orders, and an overall inability or refusal to comply with rules and regulations.

6.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions:

* on 5 May 1983, for wrongfully engaging in a fistfight with a fellow Soldier on 3 May 1983
* on 20 October 1983, for twice failing to report to his appointed place of duty at the prescribed time, for disrespecting a senior noncommissioned officer, and for the wrongful use of provoking words on 1 October 1983
* on 3 February 1984, for attempted theft and for failing to report to his appointed place of duty at the prescribed time on 26 January 1984

7.  On 5 March 1984, the applicant's immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander stated his assessment that the applicant was unqualified for further service as his reason.  The immediate commander also stated, "there is no automatic upgrading nor review by any government agency of any discharge or character of service which is less than honorable."

8.  On 7 March 1984, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.

9.  On 7 March 1984, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The immediate commander remarked that the seriousness of the circumstances was such that his retention would have an adverse impact on military discipline, good order, and morale.  Additionally, he stated the applicant had not matured enough to learn self-discipline.

10.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he received a general under honorable conditions discharge.  On 20 March 1984, the applicant was discharged accordingly.  His DD Form 214 confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 4 years, 6 months, and 9 days of net active service during this period of active duty.  The highest rank/grade he attained during his military service was specialist four/E-4.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded based on standard protocol.  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.  

2.  The evidence of record shows the applicant's duty performance was tarnished by three instances of NJP and a history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his discharge is commensurate with his overall record of military service.

3.  In view of the foregoing, he is not entitled to the 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 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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20110000325



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