IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110019580 


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 discharge to an honorable discharge and change of his narrative reason for separation from unsatisfactory performance to completion of required active service.

2.  The applicant states a review of his entire military career will show his discharge, along with the characterization of service, was based on an isolated incident and, therefore, was inequitable.

	a.  He enlisted in the U.S. Army in the rank/grade of private (PV1)/E-1, he was awarded military occupational specialty (MOS) 95B (Military Police), and he advanced to specialist four (SP4)/E-4 in just 16 months.

	b.  He held a top secret security clearance and he was driver for the installation commander.  He served as a desk sergeant with the 385th Military Police Battalion and he was responsible for garrison patrol and installation security.  He also worked with the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) drug suppression team.

	c.  He received the Army Good Conduct Medal (1st Award) and numerous certificates of appreciation and commendation.

	d.  The incident that resulted in his discharge occurred shortly after the birth of his son when he was placed on orders to Korea.  His newborn son had medical problems and he (the applicant) was experiencing family difficulties.  He was unable to cope with the situation and went absent without leave (AWOL) for a period of 4 days.

	e.  When he returned to his unit, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and he was reduced in rank.  He thought this was sufficient punishment for his action; however, his company commander also initiated separation proceedings against him for unsatisfactory performance.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three support letters.

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.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant had prior active duty enlisted service in the Regular Army (RA) from 23 May 1977 through 3 August 1977.  He was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-39 (Trainee Discharge Program) by reason of marginal or non-productive performance.  He completed 2 months and 11 days of total active service during this period of service.

3.  The applicant enlisted in the RA on 7 December 1978 for a period of 3 years.  Upon completion of training he was awarded MOS 95B.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service):  Germany - 8 May 1979 to 7 December 1981;


	b.  item 9 (Awards, Decorations and Campaigns):

* Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar
* Marksman Marksmanship Qualification Badge with Pistol (.45 caliber) Bar
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Army Service Ribbon
* Overseas Service Ribbon
* Army Good Conduct Medal (1st Award)

	c.  item 18 (Appointments and Reductions):

* advanced to SP4/E-4 on 1 July 1980
* reduced to private first class (PFC)/E-3 on 8 July 1983

5.  The applicant received NJP under Article 15, UCMJ, for being AWOL from
14-19 January 1982.  His punishment was reduction to E-3 (suspended for
60 days), forfeiture of $50.00 pay for 1 month, and 7 days of extra duty.

6.  Three Army and Air Force Exchange Service (AAFES) Dishonored Check Notifications, dated 2 February, 30 June, and 1 July 1983, show the applicant was notified that three checks written by him were returned to AAFES (Fort Benjamin Harrison, IN) due to insufficient funds.

7.  On 9 March 1983, the applicant's company commander notified him of pending MOS reclassification action due to loss of qualification based on his inability to deal with stressful situations.  On 12 June 1983, the applicant's primary MOS of 95B was withdrawn and he was awarded primary MOS 64C (Motor Transport Operator).

8.  A DA Form 6780-R (Urinalysis Custody and Report Record), dated 22 June 1983, shows the applicant's urine specimen tested positive for Tetrahydrocannabinol (THC).

9.  The applicant received NJP under Article 15, UCMJ, for being AWOL from
28 June to 3 July 1983.  His punishment was reduction to PFC/E-3, forfeiture of $70.00 pay for 1 month (suspended until 30 September 1983), 14 days of extra duty, and 14 days of restriction.

10.  On 14 July 1983, the applicant's commander notified him he was initiating action to discharge him under the provisions of Army Regulation 635-200 


(Personnel Separations – Enlisted Personnel), chapter 13 based on his demonstrated lack of motivation, self-discipline, failure to properly manage his financial affairs, and misconduct.  The applicant was advised of his rights and the separation procedures involved.

11.  The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant:

	a.  was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him;

   b.  elected not to submit statements in his own behalf; and

	c.  placed his signature on the document.

12.  The commander recommended approval of the applicant's separation action.

13.  On 26 July 1983, the separation authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13 with a General Discharge Certificate.

14.  The applicant's DD Form 214 shows he was discharged on 29 July 1983 under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and his service was characterized as under honorable conditions (general).  He was assigned a separation code of JHJ.  He completed 4 years, 7 months, and 13 days of net active service this period.

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

16.  In support of his application, the applicant provides the following documents.

	a.  A letter from Mr. Andrew I. R---, Aftercare Case Manager, Transitional Living Services - New Horizons, dated 23 August 2011.  Mr. R--- provides an abbreviated summary of the applicant's military service similar to that provided by the applicant in his application to the Board.  He states the applicant has spent his spare time volunteering at food pantries and churches, and he has been an active participant in self-improvement programs through the Department of Veterans Affairs (VA) and local organizations.  He urges the Board to favorably consider the applicant's request.


	b.  A letter from Bob and Pat P-------, dated 23 August 2011, who have known the applicant for more than 1 year.  They describe him as a willing and reliable volunteer at St. John's Lutheran Church.

	c.  A letter from Ed and Cody L------, dated 22 August 2011, who have worked with the applicant for several months at the Hebron Food Pantry.  They describe him as a prompt, dependable, courteous, and a pleasant volunteer.

17.  Army Regulation 635-200 ,in effect at the time, sets forth the requirements and procedures for the administrative discharge of enlisted personnel.

	a.  Chapter 13 provides that a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

	b.  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.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code JHJ is the appropriate code to assign to Soldiers involuntarily separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge for unsatisfactory performance with service characterized as under honorable conditions should be corrected to show he was honorably discharged based on completion of required active service because the discharge was based on an isolated incident and was inequitable.

2.  The applicant's contention was carefully considered. 

	a.  The applicant enlisted in the RA on 7 December 1978.  On 30 June 1981, he reenlisted for a period of 3 years, thereby incurring an active duty service obligation through 29 June 1984.
	b.  The evidence of record shows that during the period of service under review the applicant wrote three dishonored checks, tested positive for THC, and received NJP for being AWOL on two separate occasions.

	c.  The applicant was discharged on 29 July 1983.

	d.  As such, the evidence of record shows he did not complete his active duty service commitment and the evidence clearly refutes the applicant's contention that his discharge was based on an isolated incident of 4 days of AWOL.

3.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

4.  The applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  The applicant's post-service conduct was considered.  Although commendable, it is not sufficiently mitigating to warrant relief.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110019580



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ABCMR Record of Proceedings (cont)                                         AR20110019580



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