IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110019136 


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 honorable.

2.  The applicant states his service, on the whole, was honorable.  His Army career was good right up until the end.  People would request him for their units because he was results oriented.  At the very end of his service he had a platoon sergeant who busted him for a physical training incident.  He does not believe this single event outweighs his whole service.

3.  The applicant provides the following documents:

* Commander's Baseline Fitness Certificate, dated 29 May 1979
* Certificate of Promotion, dated 1 January 1981
* Commander's Certificate of Achievement, dated 2 April 1981
* Newspaper article showing picture of the applicant putting a warning sign on a tank
* Commander's Certificate of Achievement, dated 7 March 1982
* Certificate of Achievement, dated 17 May 1982
* Certificate of Training, Vehicle Recovery Course, 6 to 9 July 1982
* Commander's Certificate of Achievement, dated 31 August 1982
* Commander's Certificate of Achievement, dated 31 August 1982
* Letter of Appreciation, the City of Clarksville, dated 24 September 1982




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's records show:

	a.  on 17 October 1979, he enlisted in the Regular Army;

	b.  he completed his initial training and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator); and

	c.  he was assigned to the 20th Engineer Battalion on 17 October 1979.: 

3.  The applicant accepted the following nonjudicial punishments  (NJPs):

	a.  30 April 1982: for wrongful possession of marijuana; and

	b.  21 December 1982: for wrongful possession of marijuana.

4.  In a letter dated 23 December 1982, the applicant's commander notified him of the return of his personal checks dated 23 October, 3 and 9 November 1982 for non-sufficient funds.  His check cashing privileges were suspended effective 22 December 1982 for a period of 3 years.

5.  On 23 March 1983, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance/misconduct.  The commander based this action on the applicant's numerous drug-related incidents and several dishonored checks.  The commander further cited the applicant's coming to work late, missing formations, and falling out of physical training runs showing him to be a sub-par Soldier, despite counseling and punishments.

6.  On 23 March 1983, the applicant consulted with counsel.  He acknowledged his rights and requested consulting counsel.  He elected to make a statement in his own behalf; however, it is not in the available records for review.

7.  On 7 April 1983, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 12 April 1983. He had completed 3 years, 5 months, and 26 days of creditable active duty service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable because, on the whole, his service was honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.


4.  The applicant's contention that his discharge was based on a single incident is contrary to the evidence of record.  During his service he was twice punished for possession of marijuana and counseled for repeatedly writing checks with no funds in the bank.  Furthermore, the commander stated he was late for work, missed formations, and fell out of physical training runs.  This misconduct and poor performance rendered his service unsatisfactory.

5. The documentary evidence submitted by the applicant clearly shows that he knew how to Soldier and could be an excellent performer.  However his subsequent misbehavior significantly detracted from the quality of his earlier service.

6.  Based on his record of misconduct and poor duty performance, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110019136





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ABCMR Record of Proceedings (cont)                                         AR20110019136



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