IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110000468 


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 that it was one single incident and he initially received an Article 15 for petty larceny.  He believes his commander was a racist and prejudice.  His 201 File (Military Personnel Records Jacket) is immaculate.  The incident happened in 1985.   

3.  He provides a Department of Veterans Affairs (DVA) Statement of Service and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 7 September 1983, for 3 years.  He completed training and was awarded military occupational specialty 13B (Cannon Crewman).  He served in Germany from 30 December 1983 through 29 June 1985.  He was advanced to pay grade E-3 on 1 June 1984.

3.  On 19 February 1985, he was convicted by a special court-martial of larceny.  He was sentenced to confinement for 6 months, a forfeiture of $413.00 pay per month for 6 months, and a reduction to pay grade E-1.  The sentence, as provided for confinement 90 days, a forfeiture of $413.00 pay per month for 6 months, and a reduction to pay grade E-1, was approved and ordered duly executed on 10 April 1985.

4.  He was reduced to pay grade E-1 on 10 April 1985.

5.  On 8 May 1985, he received counseling for his inability to develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  He was also informed that it was apparent to his company commander that he had little potential for advancement or leadership.  Lastly, the applicant was advised that his company commander was contemplating discharging him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations, chapter 13.

6.  On 9 May 1985, the applicant's company commander requested a waiver for a rehabilitation transfer for the applicant.  

7.  On 9 May 1985, the applicant's company commander notified him of the intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 13, for Unsatisfactory Performance.  The company commander stated the reason for the action was the fact the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, including potential for advancement or leadership.  

8.  On 9 May 1985, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army Regulation 635-200.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood he might be issued a general discharge.  He waived his rights and elected to submit a statement in his own behalf.

9.  In his statement, dated 9 May 1985, he stated that he did not wish to be discharged under the provisions of chapter 13 because he felt he had paid for what he had done.  He felt he deserved a chance to prove himself.  If he was given a chapter 13 it would be hard for him to find a job which would make it very hard for him to support his mother.  He only wanted to finish one year in the Army and be honorably discharged.  He had a lot of pressure on him and family problems on his mind.  He questioned how he could be rehabilitated when there was a person trying to make his life more impossible than it was.

10.  On 17 May 1985, the appropriate authority approved the applicant's discharge and directed the issuance of a general discharge.

11.  He was discharged from active duty in pay grade E-1 on 5 June 1985, under the provisions of Army Regulation 635-200, chapter 13, for Unsatisfactory Performance, and was issued a general discharge.  He was credited with completing 1 year, 6 months, and 11 days of active service and time lost from 19 February through 6 May 1985.  

12.  He provided a copy of his DVA Statement of Service which showed he served in the Armed Forces of the United States from 7 September 1983 through 5 June 1985 and was discharged under honorable conditions.

13.  On 9 December 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unsatisfactory performance.  Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by special court-martial of larceny on 19 February 1985.  On 8 May 1985, he received counseling for his inability to develop into a satisfactory Soldier and a possible chapter 13 discharge.  
2.  On 9 May 1985, his company commander initiated action to separate the applicant for unsatisfactory performance.  The company commander stated the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, including potential for advancement or leadership. 

3.  The evidence of record does not show and he has provided insufficient evidence to show his discharge was unfair or unjust.  It appears, his inability to sufficiently participate satisfactorily and become a satisfactory Soldier diminished the quality of his service below that meriting a fully honorable discharge.  The evidence of record confirms his discharge from active duty processing was accomplished in accordance with applicable regulations and the characterization of his service and the reasons were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20110000468





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ABCMR Record of Proceedings (cont)                                         AR20110000468



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