BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110024761 


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 an upgrade of his general discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

	a.  he was talked into accepting a discharge from the Army 6 months prematurely under an early-out program and

	b.  no one informed him and he never knew he received a less than an HD until 20 years later when he applied for college.  He states he was tricked and now he can't even go back to school.

3.  The applicant provides no additional evidence.

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 record shows he enlisted in the Regular Army on 22 July 1980.  He was trained in and held military occupational specialty 31K (Combat Signaler).

3.  On 4 July 1983, he was honorably discharged in the rank of specialist four/E-4 for the purpose of immediate reenlistment.  On 5 July 1983, he reenlisted.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to sergeant/E-5 on 4 January 1984 and this was the highest rank/grade he held on active duty.  It also shows he was awarded or authorized the following awards during his active duty service:

* Parachutist Badge
* Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar
* Army Service Ribbon
* Army Achievement Medal
* Army Good Conduct Medal (1st Award)
* Multinational Force and Observers Medal

5.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 2 December 1985 for theft of property from the Main Exchange, Fort Bragg, valued between $5.00 and $10.00.  It also shows he was formally counseled six times during the period 26 February to 19 March 1986 for the following disciplinary infractions:

* being cited for two parking violations after receiving numerous other counseling for prior parking violations
* performance and possible issuance of a relief-for-cause evaluation report
* duty performance
* substandard leadership

6.  On 9 April 1986, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance with a GD.  The unit commander cited the following as the basis for the proposed separation action:

* unsatisfactory performance for not demonstrating leadership
* not seeking self improvement both technically and personally
* unwillingness to show improvement on Battalion Communications Inspections
* unsatisfactory duty performance

7.  On 10 April 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected not to submit a statement on his own behalf and to waive:

* consideration of his case by a board of officers
* personal appearance before a board of officers
* representation by counsel

8.  On 10 April 1986, the unit commander requested a waiver of the rehabilitative requirements and indicated the applicant's duty performance was unsatisfactory and he shows no desire to improve his performance.  He further stated rehabilitation would be inappropriate given he had resisted previous rehabilitative attempts.  The commander further stated that rehabilitative measures would not be in the best interest of the Army as it would not produce a quality Soldier.

9.  On 17 April 1986, the separation authority approved the applicant's separation and directed issuance of a GD.  He also waived further counseling and rehabilitation requirements.  On 22 April 1986, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service as (UNDER HONORABLE CONDITIONS (GENERAL),” and he signed the form.

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

11.  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.

12.  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 his GD should be upgraded to an HD because he was talked into accepting a discharge from the Army 6 months prematurely under an early-out program.

2.  The applicant was not separated under an early-out program.  Separation action was initiated due to his unsatisfactory performance.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  It did not support the issuance of an HD by the separation authority at the time and does not support an upgrade of his discharge now.

4.  In view of the forgoing, there is no 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 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)                                         AR20110024761



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ABCMR Record of Proceedings (cont)                                         AR20110024761



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