IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003498 


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 that his dates of service be corrected and his character of service be upgraded.

2.  The applicant states he enlisted in the Army Reserve (USAR), at age 17, on 4 September 1980 and went on active duty on 4 January 1983.  He requested reassignment to Fort Dix on 20 November 1983 because his mother was dying but was told that if he wanted to be near his mother he should take a Chapter 13 discharge.

3.  The applicant provides no supporting documentation.

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 USAR on 4 September 1980, served on initial active duty for training from 8 September 1980 through 6 December 1980, with award of the military occupational specialty 13B (Cannon Crewman).

3.  He enlisted in the Regular Army on 4 January 1983 and was assigned duty in Germany commencing on 23 February 1983.

4.  The available record contains 11 negative counseling statements.  Additionally, he had his check cashing privileges suspended for writing bad checks and his command received notification that he was not providing monetary support for his child.

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice as follows:

	a.  on 4 August 1983, for disobeying a direct order and disrespectful language toward a noncommissioned officer; and 

	b.  on 21 September 1983, for disorderly conduct.  

6.  On 27 September 1983, his command initiated separation proceedings under Army Regulation 635-200, Chapter 13, for unsatisfactory performance.

7.  The applicant, after consulting with counsel and being advised of his rights and options, acknowledged the separation action and submitted a statement on his own behalf requesting to remain on active duty.

8.  The discharge authority approved the separation action, directing he receive a General Discharge and not be retained in the Individual Ready Reserve.

9.  The applicant was discharged under honorable conditions on 10 November 1983.  He had 10 months and 7 days of creditable service during this period with 2 months and 29 days of prior active duty and 2 years, 1 month, and 29 days of prior inactive service.

10.  On 5 June 1984, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he enlisted in the Army Reserve (USAR), at age 17, on 4 September 1980 and went on active duty on 4 January 1983.  He requested reassignment to Fort Dix on 20 November 1983 because his mother was dying but was told that if he wanted to be near his mother he should take a Chapter 13 discharge.

2.  The applicant's age at the time of his initial enlistment is not a mitigating factor for his misconduct three years later.

3.  The record contains no evidence to support his contention that he had requested a hardship transfer due to his mother's health or that the Chapter 13 action was proposed for any reason except his unsatisfactory performance. 

4.  The applicants has not provided and the record does not contain any evidence that his dates of service are incorrect.  He received a DD Form 214 for both periods of active duty.  His second DD Form 214 shows his USAR service.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20110003498





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ABCMR Record of Proceedings (cont)                                         AR20110003498



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