IN THE CASE OF:	

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110011345 


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 discharge, from under honorable conditions to an honorable discharge.

2.  The applicant states:

* it has been some time since he was discharged
* at the time, his discharge wasn't a big deal
* it wouldn't help much today as there are some things he doesn't qualify for
* he is truly sorry for what happened during his time in the service
* he had intended to make the Army his career
* he asks that the Board consider his request for upgrade

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 August 1980.  He completed training and was awarded military occupational specialty 05B (Radio Operator).

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

* on 5 July 1983, for willfully disobeying the direct order of a commissioned officer, on or about 22 May 1983, and for showing disrespect toward a superior noncommissioned officer, on or about 22 May 1983
* on 4 October 1983, for willfully disobeying the direct order of a superior noncommissioned officer, on or about 13 August 1983, and for wrongfully misappropriating a government vehicle, on or about 20 August 1983

4.  His record shows he was formally counseled by members of his chain of command on eight separate occasions, between 2 May 1983 and 4 October 1983, for a myriad of performance and conduct-related matters that included, but was not limited to, unsatisfactory duty performance, lack of motivation, poor attitude, disrespect, failure to follow instructions, failure to obey orders, and an overall inability or refusal to comply with rules and regulations.

5.  On 20 October 1983, the applicant's immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander stated his assessment that the applicant was unqualified for further service as his reason.  

6.  On 20 October 1983, the applicant acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights.   He waived personal appearance and consideration of his case by a board of officers.  Additionally, he declined to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general under honorable conditions discharge was issued to him.  He was afforded the opportunity to consult with legal counsel; however, he declined the opportunity.


7.  On 4 November 1983, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  

8.  On 7 November 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he received a general under honorable conditions discharge.  On 10 November 1983, he was discharged accordingly.  His DD Form 214 shows he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200, with a character of service as under honorable conditions (general).  This form further shows he completed 3 years, 2 months, and 26 days of net active service during this period of active duty.  The highest rank/grade he attained during his military service was specialist four/E-4.

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 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.

10.  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 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.  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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20110011345



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