BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20110001500 


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 the reason for the status of his discharge was due to a misunderstanding with his command and under his "readjustment code" the disqualification is waivable and as such can be overturned.

3.  The applicant provides a self-authored letter and several character-reference letters from family and community members.

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 record shows he enlisted in the Regular Army for a period of 3 years on 23 May 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).

3.  His records reveal a history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 22 October 1981, for wrongfully possessing marijuana;

	b.  on 17 June 1982, for two specifications for failing to go to his appointed place of duty at the prescribed time;

	c.  on 25 August 1982, for two specifications for failing to go to his appointed place of duty at the prescribed time;

	d.  on 21 October 1982, for failing to go to his appointed place of duty at the prescribed time; and

	e.  on 11 November 1982, failing to go to his appointed place of duty at the prescribed time.

4.  On 9 November 1982, his immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 13-2, chapter 13, Army Regulation 635-200 (Personnel Separations), for unsatisfactory performance.  Specifically, the immediate commander cited the applicant's unwillingness to expend constructive effort to accomplish duties, no desire to soldier, sloppy appearance, and slovenly attitude.

5.  On 11 November 1982, he acknowledged receipt of the commander's intent to separate him for unsatisfactory performance under the provisions of paragraph 13-2, chapter 13, Army Regulation 635-200.

6.  In an undated 1st endorsement to his recommendation for separation, the applicant declined the opportunity to consult with legal counsel.  He elected not to waive his rights and not to submit statements in his own behalf.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

7.  On 2 December 1982, the separation authority approved the applicant's discharge for unsatisfactory performance and directed that he receive a General Discharge Certificate.

8.  On 7 December 1982, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service of under honorable conditions.  This form also shows he completed 2 years, 6 months, and 15 days of creditable active military service.

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to NJP's under the UCMJ by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  There is no evidence in the available records and he did not provide evidence to warrant upgrading his discharge.





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)                                         AR20110001500



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ABCMR Record of Proceedings (cont)                                         AR20110001500



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