IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120001494 


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.

2.  The applicant states he was told his discharge would be automatically upgraded to honorable after 6 months, but he never received notification of the upgrade.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 3 February 1982.  he completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  DA Forms 4856-R (General Counseling Form) show he was counseled for:

	a.  driving while intoxicated (DWI) on 15 July 1983;

	b.  missing formation on 26 July 1983;

	c.  failing to report for extra duty on 14 August 1983;

	d.  missing formation on 19 August 1983;

	e.  missing battalion guard on 1 October 1983;

	f.  keeping an illegal and unregistered firearm in his barracks wall locker on
3 October 1983; and

	g.  disobeying orders from a noncommissioned officer on 3 October 1983.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ) on 18 October 1983 for being absent from his place of duty, disobeying a lawful general regulation by having a small caliber pistol in his wall locker, and for assaulting another Soldier by pointing an unloaded weapon at him.

5.  He departed absent without leave (AWOL) on 6 March 1984 and he returned to military control on 15 March 1984.

6.  On an unspecified date, he received a General Officer Letter of Reprimand (GOLOR) for drunken driving.  The applicant acknowledged receipt of the GOLOR in writing.

7.  He again departed AWOL on 6 April 1984 and he remained AWOL until he was apprehended by civilian authorities on 13 April 1984.

8.  A memorandum from the Fort Carson, CO, Finance and Accounting Officer, dated 12 April 1984, indicates his check cashing privileges were suspended for
3 years due to rendering ten dishonored checks.

9.  On 26 April 1984, he was notified by his commander that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander cited as the reason for the proposed separation the applicant's repeated AWOL offenses, one charge of keeping an illegal firearm in the barracks, a DUI arrest by civil authorities, and failure to pay just debts.  He was also advised of his right to consult with legal counsel and to submit statements in his own behalf.

10.  On the same day, he acknowledged receipt of the proposed separation action.  He was afforded the opportunity to consult with counsel; however, he declined the opportunity to do so.  He also elected not to submit a statement in his own behalf.

11.  On 14 May 1984, a representative from the Office of the Staff Judge Advocate found the separation action legally sufficient.

12.  On 15 May 1984, the appropriate authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  Accordingly, he was discharged on 24 May 1984.  He completed 2 years, 3 months, and 8 days of creditable active service with 18 days of time lost.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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.

15.  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 request for a discharge upgrade has been carefully considered.

2.  He stated that he was told his discharge would be automatically upgraded to honorable after 6 months.  However, the Army has never had a provision for automatically upgrading discharges based solely on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in the character of his or her discharge.

3.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  He was afforded and declined the opportunity to consult with legal counsel, and he elected not to make a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  His disciplinary history includes an NJP, a DWI charge, failing to pay just debts, and an extensive negative counseling record.  This record of indiscipline clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service.

5.  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)                                         AR20120001494



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ABCMR Record of Proceedings (cont)                                         AR20120001494



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