IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009840 


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 a fully honorable discharge.

2.  The applicant states his only reason for leaving the military prior to the expiration of his term of service was to save his marriage.  His wife was never involved with the military and she could not adjust.  He was given the option to choose her or the military, but not both.  She was pregnant and he could not risk losing both.  He would like his discharge upgraded to obtain healthcare and educational benefits along with financial and/or housing 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's records show he enlisted in the Regular Army on 22 October 1976 and he held military occupational specialties 11B (Infantryman) and 63B (Light Wheel Vehicle and Power Generation Mechanic).

3.  His records also show he served in Germany from 10 March 1977 to 25 March 1980.

4.  On 17 September 1982, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his habitual misconduct including failure to complete assigned tasks, personal business interfering with assigned duties, failure to follow directives, poor performance, extortion charges, poor attitude, inability to meet unit standards, and termination of his assignment as a noncommissioned officer (NCO).  He was furnished with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the appropriate authority.

5.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 12 November 1982, for willfully disobeying a lawful order to prepare for inspection
* 19 November 1982, for making harassing calls to Mrs. K____ R____ and being charged with extortion

6.  On 10 November 1982, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander stated the discharge was recommended because of the applicant's inability to perform his duties, writing several bad checks, and having a poor attitude.

7.  On 10 November 1982, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He did not request or waive consideration of his case by a board of officers, request or waive personal appearance before a board of officers, or elect to submit a statement on his own behalf.

8.  He acknowledged, however, that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 10 November 1982, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander made similar remarks to those made in the notification memorandum and added that the applicant had been counseled on numerous occasions, listed the dates of counseling, and that the applicant had too much interference with his military duties and poor completion of assigned tasks.

10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of chapter 13, Army Regulation 635-200 by reason of unsatisfactory performance and directed issuance of a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 24 November 1982.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he received shows he was discharged for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200 with a general character of service.  This form shows he completed 6 years, 11 months, and 3 days of creditable military service and he had 3 days of lost time.

12.  He was awarded the Army Good Conduct Medal, Overseas Service Ribbon, NCO Professional Development Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and First Class Marksmanship Qualification Badge with Grenade Bar.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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.

15.  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 counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.

2.  The available evidence shows his duty performance was tarnished by two instances of NJP, a bar to reenlistment, and a history of negative counseling.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.

3.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20110009840



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ABCMR Record of Proceedings (cont)                                         AR20110009840



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