IN THE CASE OF:	  

		BOARD DATE:	 4 August 2011

		DOCKET NUMBER:  AR20110009654 


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 he is trying to go to school and would like to gain access to Department of Veterans Affairs benefits.

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 15 March 1979 at age 18.  His record shows he was academically eliminated from Phase II of Career Management Field 95 (Military Police), One Station Unit Training.  He completed basic combat and advanced individual training in military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  However, he held the rank/grade of private first class (PFC)/E-3 at the time of separation.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 July 1982 for failing to go to physical training formation on 18 July 1982.

4.  On 24 February 1983, the applicant received a DA Form 4126 (Bar to Enlistment/Reenlistment Certificate).  Item 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) lists the previously-mentioned Article 15, a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) for wrongful possession of a controlled substance/marijuana, a counseling form, and two sworn statements.

5.  On 22 May 1983, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The DA Form 2496 (Disposition Form), Item 2 (The Specific Basis for My Recommending Your Separation):  states “You have been transferred from many different sections in order to have a fresh chance.  You have also been counseled and given punishment under the UCMJ all to no avail.”

6.  On 23 May 1983, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects if a general discharge were issued to him, and of the rights available to him. 

7.  On 4 August 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a general discharge.
 
8.  On 12 August 1983, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  He completed 4 years, 4 months, and
28 days of active military service during this period.

9.  There is no indication that 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 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.

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 applicant's request for an upgrade of his general discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The record shows he received counseling, NJP, and a Bar to Reenlistment.  In addition, the applicant was transferred to at least one other section so that he could have a fresh start.  The evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

3.  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.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

5.  The ABCMR does not upgrade discharges solely for the purpose of making an applicant eligible for veterans' medical or other benefits.


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)                                         AR20110009654



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ABCMR Record of Proceedings (cont)                                         AR20110009654



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