IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120002911 


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 that his general discharge, under honorable conditions be upgraded to honorable.

2.  The applicant states his performance of duty was not unsatisfactory.  He contends that due to a reduction in force in the late 1980's he was unfairly and unjustly separated from the military service.  He feels he was not given the proper guidance, leadership, or representation during his last days in the service.  He should not have to suffer any longer for his youthful transgressions.  His disappointment and embarrassment has been very traumatic and greatly impacted his life in a negative way.  He states that the charges for being absent without leave (AWOL) were for merely missing formation.  He was late for formation and on two occasions had not been told about the formation.  With regard to the charge of driving in a drunken and reckless manner, he feels that he had been unfairly persecuted and harassed by his superior officers.  He was very young at the time of these offenses.  He admits he made mistakes, he learned a valuable lesson from each incident.  He was also severely punished for those mistakes.  He was reduced in rank, forfeited pay and performed extra duty.  The above mentioned offenses should not have been considered in the decision to discharge him early because he had already been punished for those mistakes.  He has paid for any wrongs he has done.  He contends that his enclosures show his duty performance was not unsatisfactory.




3.  The applicant provides copies of:

* ATZK-TC-TBA Form 1112, Completion of One Station Unit Training, dated 21 November 1985
* Award Certificate for the Army Good Conduct Medal
* Warrior Spirit certificate for meritorious achievement during 12 January to 15 February 1989
* Certificate of Service for faithful and Honorable Service, dated 12 August 1989

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.  On 12 August 1985, the applicant, at 19 years and 6 months of age, enlisted in the Regular Army.  He successfully completed his initial training and was awarded military occupational specialty 19E (Armor Crewman).

3.  The applicant accepted the following nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

	a.  28 April 1986: for AWOL from 0600 hours, 14 April to 0600 hours, 
15 April 1986;

	b.  9 January 1987: for AWOL from 0600 hours, 5 January to 2115 hours, 
6 January 1987;

	c.  20 June 1988: for failure to go to morning formation on 30 May 1988; for AWOL from 0600 hours, 1 June to 2000 hours, 2 June 1988; for failure to go to appointed place of duty at 1420 hours, 6 June 1988; and for failure to obey a lawful order by wrongfully operating a vehicle on the installation; and

	d.  14 April 1989: for operating a vehicle in a reckless manner while drunk. 
4.  The applicant received the following two written reprimands, not imposed as punishment under the UCMJ:

	a.  1 April 1988: for civilian conviction for driving under the influence on 
13 March 1988; and

	b.  11 April 1989: for refusing to submit to a lawfully requested blood alcohol test on 7 April 1989.

5.  In August 1988, the applicant was awarded the Army Good Conduct Medal for his first 3 years of active duty service.

6.  On 18 May 1989, the commander notified the applicant of his intention to separate him from the military service based upon his unsatisfactory performance in accordance with Army Regulation 635-200, chapter 13.  The commander cited as a basis for his action the applicant's four NJP's, 33 adverse counselings between January 1986 and 17 April 1989, his poor job performance, poor appearance and poor attitude, and his two civilian arrests, one for driving under the influence and one for burglary that was settled out of court.  The applicant had failed to heed the attempts by the chain of command to rehabilitate him.  He had been afforded many opportunities to restructure his military bearing and to become a good Soldier.  His apathetic attitude and unwillingness to abide by the rules and regulations established by the command and the U.S. Army had clearly indicated that he did not meet retention standards.

7.  On 18 May 1989, the applicant consulted with counsel, and elected not to make a statement in his own behalf.  He also waived consulting counsel and representation by counsel and personal appearance before an administrative board.

8.  On 18 May 1989, the appropriate authority approved the recommendation and directed that the applicant discharged with an under honorable conditions characterization of service.

9.  On 31 May 1989, he was discharged accordingly.  He completed 3 years, 
9 months, and 17 days of creditable active duty service.

10.  On 8 June 1993, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.  The ADRB found that his discharge was both proper and equitable.


11.  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.

	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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge, under honorable conditions should be upgraded to honorable because he was unfairly and unjustly separated from the military service.  He also contends that he was very young at the time.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 19 1/2 years of age when he enlisted.  He had satisfactorily completed training and received recognition for some of his service.  The training, achievement, and award certificates provided by the applicant clearly show that he knew how to Soldier; however, they do not overcome his subsequent continuous and repeated acts of misconduct and apathetic behavior.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

5.  Based on his record of NJPs, civilian arrests, and numerous counselings for unsatisfactory performance, the applicant's service clearly does not meet the acceptable standards for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.
6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120002911





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ABCMR Record of Proceedings (cont)                                         AR20120002911



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