IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110009843 


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 discharge under honorable conditions be upgraded to honorable.

2.  The applicant states he was told by his first sergeant (1SG) that his discharge would automatically be upgraded after 5 years.  He was not given the opportunity to redeem himself.  He cooperated and was given a general discharge although he was innocent.

3.  The applicant provided 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 24 September 1987 and he held military occupational specialty 71L (Administrative Specialist).  The highest rank/grade he attained during his military service was private first class/E-3.  His records show he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Overseas Service Ribbon.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 7 June 1988, for failing to obey a lawful regulation and for breaking restriction
* on 12 July 1988, for breaking restriction
* on 30 January 1989, for committing larceny and wrongfully appropriating government property

4.  On 25 March 1989, his immediate commander recommended that the applicant be barred from reenlistment.  The commander cited the three Article 15's the applicant received.  On 6 April 1989, the bar to reenlistment was approved by the chain of command and placed in his records.  On 6 September 1989, the chain of command reviewed the bar to reenlistment and determined the bar would remain in place.

5.  On 6 October 1989, he was assigned to Company B, 6th Squadron, 12th Cavalry Regiment, Fort Knox, KY.

6.  Between April 1990 and June 1990, he was frequently counseled by several members of his chain of command for repeated issuance of bad checks, failure to repair, substandard attitude and duty performance, and total disregard for military authority.

7.  On 15 May 1990, the applicant's 1SG recommended to the commander that separation action be initiated against the applicant for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The 1SG stated the recommendation was based on the applicant's bar to reenlistment, his unsatisfactory performance as a 71L, and his lack of ability to perform his duties effectively in the future.  The 1SG further stated that when the applicant arrived in the unit he told everyone to include the 1SG, G-3, and sergeant major that he had been an E-5 military policeman (MP) and had been reduced while serving in Germany.  It was not until April 1990 when the 1SG reviewed his military personnel records jacket, that the 1SG found out this was untrue.  Since that time, he had been counseled for being late to work and he still showed no signs of initiative.

8.  On 19 June 1990, he was notified by his immediate commander that discharge action was being initiated against him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  The commander stated the specific reasons were for his three Article 15's, his bar to reenlistment, for lying to the chain of command about being an E-5 MP, his apathetic attitude, and his lack of initiative to improve his performance despite numerous verbal and written counseling.  The commander also stated he was recommending issuance of a general discharge under honorable conditions.

9.  On 19 June 1990, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  He was advised of the procedures and rights available to him.  He also acknowledged he understood if he were issued a discharge certificate that was less than honorable, he could apply for an upgrade to the Army Discharge Review Board (ADRB) or the ABCMR, but that an act of consideration by either board did not imply that his discharge would be upgraded.

10.  On 10 July 1990, the separation authority approved his discharge for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 16 July 1990, he was discharged accordingly.

11.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions characterization of service in the grade of private/E-1 by reason of unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He completed 2 years, 9 months, and 23 days of creditable active service.

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.

14.  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 demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the bar to reenlistment imposed against him and the NJP he received on three occasions for failing to obey a lawful regulation, breaking restriction, and committing larceny.  In addition, he was counseled numerous times for repeatedly issuing bad checks, failing to repair, demonstrating a substandard attitude and duty performance, lying to his chain of command, and totally disregarding military authority.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  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)                                         AR20110009843



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ABCMR Record of Proceedings (cont)                                         AR20110009843



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