IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110018146 


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 discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states that he was young at the time and made a mistake.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 October 1983
* a Miami-Dade County Police Department Criminal Report, dated 
17 September 2010
* a State of Florida Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, dated 17 September 2010
* two statements of support with dates 26 August 2011 and 29 September 2011

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 2 July 1960.  He enlisted in the Regular Army on 27 July 1979 for a 3-year term of service.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 76W (Petroleum Supply Specialist).  On 8 February 1980, the applicant was assigned to B Troop, 1st Squadron, 17th Cavalry (Airborne), Fort Bragg, NC.  The applicant was promoted to the rank/grade of specialist four (SP4)/E-4, effective 1 May 1981.

3.  On 2 August 1982, the applicant was honorably discharged for the purpose of immediate reenlistment on 3 August 1982.  He had been awarded:

* Army Achievement Medal 2nd Award
* Army Good Conduct Medal
* Army Service Ribbon
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* July 1981 for failure to repair
* September 1981 for poor duty performance
* November 1981 for poor duty performance
* December 1981 for poor duty performance and failure to repair
* February 1983 failure to repair
* March 1983 for use of a controlled substance
* August 1983 for failure to repair

5.  On 25 August 1983, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failure to be at his appointed place of duty.


6.  On 21 September 1983, the applicant's commander signed an elimination packet and a waiver of rehabilitative transfer for the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The reason cited by the commander was the applicant receiving an Article 15 and he had been counseled on numerous occasions for failure to repair.  The applicant had been found positive for marijuana on two occasions.

7.  On 21 September 1983, he was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected not to submit a statement on his own behalf.

8.  On 22 September 1983, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed that the applicant receive a general discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

9.  On 14 October 1983, the applicant was discharged under honorable conditions after completing 4 years, 2 months, and 18 days of creditable active service with no lost time.

10.  The applicant provides two statements of support dated 26 August 2011 and 29 August 2011.  The authors are both social workers at the Department of Veterans Affairs (DVA), Miami, FL.  The authors state that the applicant is a very mannerly and personable person.  The authors further state for the last three years the applicant has participated in the outpatient substance abuse program.  His response to treatment has been good and he has been off drugs and alcohol for the last two years without incident.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 27 March 1992, the ADRB reviewed and denied his appeal.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as general under honorable conditions.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 provides that a member may be separated when 



it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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 contends that he was young at the time of his misconduct.  However, records show the applicant was 21 years of age at the time of his first offense.  He successfully completed basic combat training and advanced individual training and he was able to reenlist.  The applicant knew the Army's standards of conduct.  Therefore, his contention that he was immature at the time of his offenses does not mitigate his indiscipline.

2.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

3.  The applicant's records show he received numerous poor performance counselings, he had one Article 15 and had two instances of being positive for marijuana.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of 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)                                         AR20110018146





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ABCMR Record of Proceedings (cont)                                         AR20110018146



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