IN THE CASE OF:	  

		BOARD DATE:	    6 December 2011

		DOCKET NUMBER:  AR20110010880 


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 served his country with honor.  He loved being a paratrooper, yet he made mistakes because of being young that he has always regretted.  He states he will send letters from respectful people around him.  (These letters have not been received by the Army Board for Correction of Military Records (ABCMR).)

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 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.  On 9 July 1982, he enlisted in the Regular Army for a period of 3 years at 17 years of age with parental consent.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 24 November 1982, he was assigned to Company A, 2nd Battalion (Airborne), 504th Infantry, at Fort Bragg, NC.

4.  On 18 May 1983, he received a Bar to Reenlistment Certificate due to 12 dishonored checks.  The certificate was reviewed on 13 October 1983 and on 28 August 1984 and not recommended for removal.

5.  He was confined by civil authorities from 1-19 June 1984 and charged with stealing an automobile.  There is no disposition of this charge in his Military Personnel Records Jacket.

6.  On 23 July 1984, he accepted nonjudicial punishment (NJP) for failing to repair.

7.  On 26 February 1985, he received a mental status evaluation by a chief warrant officer physician's assistant.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He noted that no psychiatric abnormalities were found.  Dr. R-----, M.D., approved these findings.

8.  On 26 February 1985, he accepted NJP for:

* being derelict in the performance of his duties
* failing to go at the time prescribed to his appointed place of duty

9.  On 4 March 1985, he received a mental status evaluation by a Medical Corps captain.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501.  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He noted the applicant did not reveal any evidence of any psychiatric disorder and he was psychiatrically cleared for whatever administrative action was deemed appropriated by his command.

10.  On 21 March 1985, he accepted NJP for being derelict in the performance of his duties.

11.  On 28 March 1985, his commander notified him he was initiating action to discharge him under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander stated his recommendation for discharge was based on the applicant's:

* acceptance of NJP on three occasions
* chronic indebtedness
* failure to meet standards

12.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

13.  On 28 March 1985, the applicant acknowledged he had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

14.  He elected to submit a statement in his own behalf and stated:

	a.  his company had given him chance after chance to prove himself and yet he failed;

	b.  in the field he was a great Soldier, but when they returned he started an everlasting line of messing up; and

	c.  he would like to have the chance to return after a length of time.  He feels by then he could have everything as well as himself straightened out.  He was proud of his unit and felt being a paratrooper was an honor.

15.  The applicant further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded

16.  On 28 March 1985, his commander recommended his separation from the service because of unsatisfactory performance under the provisions of Army Regulation 635-200.  He stated the applicant had a chronic indebtedness problem which had affected his duty performance.  Counseling by his chain of command resulted in no specific improvements.

17.  He recommended that the requirements for rehabilitative transfer be waived. 
The applicant did not display the maturity expected of the member of the unit.  He believed that rehabilitative transfers should be reserved for troopers who sincerely deserve another chance.

18.  On 30 April 1985, he accepted NJP for being absent without leave (AWOL) 1-24 April 1985.

19.  The appropriate authority:

* waived a rehabilitative transfer
* approved the recommendation for discharge
* directed the issuance of a General Discharge Certificate

20.  On 16 May 1985, he was discharged due to unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13,.  He completed 2 years, 8 months, and 26 days of active service that was characterized as under honorable conditions.  He had 42 days of lost time due to civil confinement and being AWOL.

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

22.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13, in effect at the time, provided 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
* the ability of the service member to perform effectively in the future including potential for advancement or leadership, is unlikely

	b.  Service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions.

	c.  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.  He was barred from reenlistment due to 12 dishonored checks.  He accepted NJP on four occasions and he was AWOL for 23 days.  He had been arrested by civil authorities for stealing an automobile.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  His age at the time of his enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  He was advised and he acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, there is no basis to upgrade his 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)                                         AR20110010880



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ABCMR Record of Proceedings (cont)                                         AR20110010880



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