IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110006702 


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 discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states he thought his discharge would automatically be upgraded from general to honorable after 6 months.  He states he was discharged under the provisions of chapter "9" for being overweight.

3.  The applicant provides no additional evidence.

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 Regular Army on 1 February 1980.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 62B (Construction Equipment Repairer).

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), approved on 17 February 1983, indicates the applicant was barred from reenlistment for failure to show sufficient progressive weight loss under the regulatory requirements and policies set down by his chain of command.  He elected not to submit a statement in his behalf.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 18 May 1983 for missing numerous meals while enrolled in the Slim Eagle Program
* 9 June 1983 for failure to report to the parade field after sick call
* 16 June 1983 for failure to meet his required weight in 6 months

5.  On 21 June 1983, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failure to be at his appointed place of duty.

6.  On 15 July 1983, the applicant's commander signed an elimination packet and a waiver of rehabilitative transfer for the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The reason cited by the commander was the applicant's failure to adhere to the standards and policies set forth by the unit pertaining to his weight loss record and failure to achieve the standards set forth by the U.S. Army.

7.  On 15 July 1983, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected not to submit a statement on his own behalf.

8.  On 19 July 1983, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed that the applicant receive a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

9.  On 25 July 1983, the applicant was discharged under honorable conditions after completing 3 years, 5 months, and 25 days of creditable active service with no lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander's judgment, the Soldier 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.  Although the applicant contends he was told his discharge would be automatically upgraded after 6 months, the U.S. Army does not now have and it has never 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 the characterization of service or the reason for discharge or both were improper or inequitable.

2.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

4.  His records show he received one Article 15, had numerous negative counselings, and had been barred from reenlistment.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable 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)                                         AR20110006702



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ABCMR Record of Proceedings (cont)                                         AR20110006702



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