IN THE CASE OF:	  

		BOARD DATE:  21 February 2012

		DOCKET NUMBER:  AR20110017725 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  He states:

* he was young and immature at the time of his discharge
* he used bad judgment pertaining to making decisions regarding his military career
* he was punished under the Uniformed Code for Military Justice (UCMJ) for going absent without leave (AWOL)
* he went AWOL after being charged with possession of a controlled substance which was found in the common area in his barracks room
* he was scared so he did not return to his duty station in Germany after his Christmas leave

3.  He provides no additional documents.

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 19 July 1964 and enlisted in the Regular Army on 25 February 1983 at the age of 18 years, 7 months, and 19 days.

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  His record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting adverse counseling sessions from 
5 June 1984 to 21 February 1985 for:

* failure to maintain his room for inspections on numerous occassions
* failure to report for formation 
* failure to report to his appointed place of duty at the time prescribed on numerous occasions

5.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice on:

   a.  21 February 1985, for indebtness to the VAG transportation system for the sum total of 150 deutche marks on three separate occasions; and .

   b.  3 June 1985, for being AWOL from 15 January to 14 February 1985, derelict in the performance of his duties, and intent to deceive by signing an official record which was totally false.

6.  On 19 June 1985, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited unsatisfactory performance and his ability to maintain acceptable standards of Soldierly conduct in both his on and off duty behavior.  The unit commander advised the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, and to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action.  He was also advised that he could waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.  He did not submit a statement.
7.  On the same date, his unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited his disciplinary history, failure to respond to counseling, and inability to conform to acceptable standards of Soldiering as the basis for this action.

8.  Having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation action, its effects, and the rights available to him.  He was also informed that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He did not submitted a statement in his own behalf.

9.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation) in which the examining physician found he had a normal mental status exam and had the mental capacity to understand and participate in the discharge proceedings.

10.  On 22 June 1985, the separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, with a General Discharge Certificate.

11.  On 19 July 1985, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 shows he was issued an under honorable conditions (General) discharge.  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance." Item 29 (Dates of Time Lost During This Period) shows 15 January 1985 to 
14 February 1985 for a period of 31 days.

12.  There is no evidence that he applied to the Army Discharge Review Board for upgrade of his discharge.

13.  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.

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 applicant's contention that his discharge should be upgraded because he was young and immature was found to lack merit.

2.  His record reveals a disciplinary history that includes 31 days of being AWOL, numerous adverse counseling statements, and his acceptance of two Articles 15 under the UCMJ.

3.  His record shows he was 18 years of age at the time of his enlistment and he was 20 years of age at the time of his offenses.  Furthermore, there is no evidence that indicates his going AWOL was the result of being charged with possession of marijuana.  

4.  Therefore, his service does not warrant an upgrade of his discharge 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 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)                                         AR20110017725



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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