IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120002013 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he submitted and got a correction to his discharge over 20 years ago but lost the paperwork in a flood.  He claims when he recently requested a new DD Form 214 (Certificate of Release or Discharge from Active Duty), he discovered it still showed he received a GD.  

3.  The applicant provides no documentary evidence in support of his request.  

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 record shows the applicant enlisted in the Regular Army for 4 years on 
20 September 1989, and was trained in and awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His record shows private first class/E-3 is the highest grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history documents an extensive record of formal counseling by members of the chain of command for a myriad of duty performance and conduct related issues between 26 May and 19 June 1990.  These infractions included the following:

* refusing to comply with lawful orders (multiple)
* insubordination (multiple)
* refusing to perform duties (multiple)
* failure to be at appointed place of duty at time prescribed (multiple)
* failure to secure work area 
* failure to properly complete hand receipts 

4.  On 2 November 1990, the unit commander notified the applicant that action was being taken to initiate the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance and that it was being recommended the applicant receive a GD.  The unit commander cited the applicant’s failure to obey orders, refusal to perform assigned duties, and insubordinate conduct toward superiors as the basis for taking the separation action.  The unit commander indicated the applicant lacked rehabilitation potential.  

5.  On 2 November 1990, the applicant acknowledged receipt of the notification of separation action and completed an election of rights in which he waived his right to consideration of his case by an administrative separation board, representation by counsel, and he elected not to submit statements in his own behalf.  

6.  On 7 November 1990, the separation authority approved the applicant’s separation for unsatisfactory performance and directed the applicant receive a GD.  On 16 November 1990, the applicant was discharged accordingly.  The 
DD Form 214 he was issued at the time shows he completed a total of 1 year, 1 month, and 7 days of active military service.  

7.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations, or that he ever previously applied to this Board for an upgrade of his discharge.  
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:   

   a.  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.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.
   
   b.  Paragraph 3-7a of the same regulation provides that an HD 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 to upgrade his discharge because he got a correction to his discharge 20 years ago has been carefully considered.  However, there is insufficient evidence to support this claim.  There is no evidence of record or independent evidence provided by the applicant that shows his discharge was previously changed by either the ADRB or by this Board.  

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes multiple incidents of refusing to perform assigned duties and insubordination, which clearly diminished the overall quality of his service below that meriting a fully HD.  As a result, his record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.

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)                                         AR20120002013



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ABCMR Record of Proceedings (cont)                                         AR20120002013


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