IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004115 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states no assistance was offered him to afford a reasonable accommodation for adequate defense in his case.  He claims his executive officer (XO) was very biased and determined to make an example of him.  

3.  The applicant provides no documentary evidence in support of his application. 

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 (RA) on 6 May 1981 and was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He was advanced to the grade of private/E-2 on       22 November 1982, and this is the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows he earned the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes a 23 November 1983 summary court-martial conviction for violating Article 91 of the Uniform Code of Military Justice (UCMJ) by being disrespectful to a noncommissioned officer and Article 92 by violating a lawful general regulation.  His sentence was a reduction to private/E-1 (PV1/E-1), forfeiture of $200.00, and 25 days of confinement at hard labor.  

5.  The applicant's disciplinary history also includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on the following three separate occasions for the offenses indicated:

a.   22 December 1981, for being drunk and disorderly;

	b.  9 August 1982, for damaging the property of the German government; and 

	c.  5 January 1983, for disorderly conduct.  

6.  On 10 January 1983, the unit commander notified the applicant that he intended to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The unit commander cited the applicant’s record of discreditable acts and conduct prejudicial to good order and discipline; and the applicant’s lack of potential as the basis for taking the action.  

7.  On 19 January 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, and of the rights available to him.  

8.  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 the applicant receive a general, under honorable conditions discharge.  On 3 February 1983, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time shows he held the rank of private/E-1 and he had completed a total of 1 year, 8 months, and 12 days of creditable active military service and had accrued 16 days of time lost due to military confinement at the time of his discharge.  

9.  On 6 January 1987, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s record of military service and the issues presented, determined the applicant’s discharge was proper and equitable and voted unanimously not to change the character or reason for discharge.  

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, in pertinent part, 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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his discharge because he was not afforded the opportunity to provide an adequate defense has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes a summary court-martial conviction and his acceptance of NJP on three separate occasions which clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his record did not support the issue of an honorable discharge by the separation authority at the time and does not support an upgrade now.

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)                                         AR20110004115



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ABCMR Record of Proceedings (cont)                                         AR20110004115



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