IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015525 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.  

2.  He states his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.  

3.  He provides his college transcript, Certificate of Completion, and President’s Honor Roll Certificate from South Texas College.  

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 14 December 1981 for a period of four years.  
3.  A review of his service record revealed derogatory information which shows he:

	a.  accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 6 January and 25 February 1983, for willfully disobeying a lawful order from his superior noncommissioned officer and failing to obey a lawful order.

	b.  was convicted by a summary court-martial on 19 January 1983, as promulgated in Summary Court-Martial Order Number 3, dated 19 January 1983 (this court-martial order is not available).  Summary Court-Martial Order Number 8, dated 15 February 1983, suspended the unexecuted portion of the approved sentence to confinement at hard labor for 30 days.

	c.  was confined by military authorities from 19 January to 3 February 1983.

	d.  received counseling on 14 February 1983 for being assigned to the U.S. Army Correctional Activity, Fort Riley, KS, by reason of his sentencing by a court-martial.  

4.  On 14 March 1983, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He consulted with legal counsel and submitted statements in his own behalf.  He stated he felt he deserved an honorable discharge because he had successfully completed the correctional program.  He had never encountered any kind of problems until he entered the military.  By receiving an general under honorable conditions discharge wouldn’t entitle him to a good-paying job.  An honorable discharge would give him a chance to prove himself again.  After his time was up, he planned to return to the military and leave his problems behind him, if he had any.  

5.  On 28 March 1983, the separation authority waived a rehabilitation transfer and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with the issuance of a general under honorable conditions discharge.

6.  On 30 March 1983, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 1 year, 3 months, and 1 day of active military service with 16 days of lost time due to confinement.  

7.  He provided his transcript and Certificate of Completion from South Texas College which both show he completed the prescribed course of study for Automotive Technology on 17 December 2010.

8.  He also provided a certificate which shows he was placed on the President’s Honor Roll at South Texas College for having enrolled in a minimum of 12 credits for the 2010 Fall Semester and maintaining a 4.0 grade point average.  

9.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 applicant’s contention that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action is acknowledged.  However, his service record shows he received two Article 15s and was convicted by a summary court-martial.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and characterized his service as general under honorable conditions.  He has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

4.  The available evidence does not indicate the actions taken against him were in error or unjust.  Therefore, there is no basis for granting his request.

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)                                         AR20110015525





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ABCMR Record of Proceedings (cont)                                         AR20110015525



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