IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015002 


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 be upgraded to honorable.

2.  The applicant states:

* He was discharged for failure to adapt to military life over 29 years ago
* He was very young at the time without knowledge of what he signed up for
* He had no self discipline then and struggled with authority figures
* He hung in there the best he could and did nothing to disgrace the Army
* The Army simply wasn’t for him  

3.  The applicant provides no documentary 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 was born on 22 September 1962.  He enlisted in the Regular Army on 20 October 1982 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 64C (motor transport operator).   

3.  Between December 1982 and July 1983, nonjudicial punishment (NJP) was imposed against the applicant on five separate occasions for:

* Sleeping on post
* Breach of the peace
* Disobeying lawful orders
* Failure to repair
* Failing to obey a lawful general regulation
* Treat with contempt
* Disrespectful language 

4.  On 6 July 1983, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The reasons for the proposed action were:

* In the short time he had been assigned to the unit he had shown no initiative as a Soldier in the Army
* He had received two NJPs
* He was always in need of personal supervision
* His unwillingness to become a productive Soldier

5.  On 8 July 1983, he consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected not to submit a statement in his own behalf.  

6.  The separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13 and directed the applicant be furnished a general discharge.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 20 July 1983 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had served 9 months and 1 day of creditable active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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.  He contends he was very young at the time without knowledge of what he signed up for.  However, age is not a sufficiently mitigating factor.  He was 
20 years of age when he enlisted and he successfully completed training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  He contends he was discharged over 29 years ago.  However, the passage of time is normally not a basis for upgrading a discharge.

3.  His brief record of service included five NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.
5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20110015002





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ABCMR Record of Proceedings (cont)                                         AR20110015002



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