IN THE CASE OF:	  

		BOARD DATE:  7 August 2012	  

		DOCKET NUMBER:  AR20120002049 


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 by his commanding officer that his general discharge would turn into an honorable discharge after 90 days.

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 enlisted in the Regular Army on 22 January 1985.  He completed training as a carpentry and masonry specialist.

3.  The applicant's record shows he was counseled on at least eight separate occasions between 7 October 1985 and 22 December 1985 for the following offenses:

* being relieved from duty due to infractions, lack of initiative, and motivation
* not following safety procedures
* having problems adjusting to be a Soldier
* below standard duty performance
* attitude and methods in better understanding and coping with military standards
* being kicked out of class for not having the prescribed items for training
* disobeying a lawful order by failing to appear in class as instructed
* being absent from his place of duty
* behavior and attitude towards his job and the Army
* making unfounded excuses
* being uncooperative
* refusal to participate in any military training
* flagrant disregard of orders

4.  Each time the applicant was counseled he stated he wanted to be discharged from the Army.  He stated that behaving in the manner in which he did would only help him to be discharged from the Army.

5.  On 18 December 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order issued by his superior noncommissioned officer, by not having his required equipment for training, and for failing to go at the time prescribed to his appointed place of duty.

6.  On 30 December 1985, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unsatisfactory performance.  He was advised by his commanding officer that the least favorable discharge he could receive was a general discharge under honorable conditions. His commander cited the NJP he accepted and his absolute refusal to participate in any military training as a basis for his recommendation.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on 23 January 1986 and recommended the issuance of a General Discharge 

Certificate.  On 13 February 1986, the applicant was discharged, under honorable conditions, under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance, with a General Discharge Certificate.  He completed 1 year and 22 days of creditable active service.

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

9.  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
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely

10.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

11.  Army Regulation 635-200, paragraph 3-7a states 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 contentions have been noted.  His supporting evidence has been considered.

2.  The evidence of record does not show the applicant was misinformed by his commanding officer regarding the type of discharge he would receive.  His record shows he was counseled on at least eight occasions and he accepted NJP due to unsatisfactory performance.  In accordance with the applicable regulation, an individual will be separated for unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier.  An honorable or a general discharge is normally considered appropriate.

3.  The applicant received a general discharge based on his overall record of service.  He has not shown that the type of discharge he received is too harsh or unjust.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

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)                                         AR20120002049



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ABCMR Record of Proceedings (cont)                                         AR20120002049



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