BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120003396 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was discharged because he had two driving accidents, but his performance during his military service was satisfactory.

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

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 6 June 1985 for a period of
3 years and 17 weeks.  He was awarded military occupational specialty 64C (Motor Transport Operator).

3.  The applicant accepted nonjudicial punishment (NJP) on two occasions for:

* failing to obey a lawful general regulation by wrongfully having an accident by not utilizing a ground guide on 10 March 1986
* being disrespectful in language toward a noncommissioned (NCO) on
30 June 1986 and disobeying a lawful order from an NCO on 1 July 1986

4.  On 29 July 1986, the applicant was notified by his company commander that he was recommending a bar to reenlistment based on two NJPS and the applicant's apathetic attitude and lack of desire to improve his attitude toward the military.

   a.  The applicant elected not to submit a statement in his own behalf.

   b.  The battalion commander approved the bar to reenlistment on 30 July  1986.
   
5.  During the period 26 January to 12 September 1986, the applicant was counseled on several occasions for the following:

* disobeying an order from an NCO (on 26 January, 3 and 4 March 1986)
* receiving a ticket for speeding on 4 June 1986
* a pattern of substandard duty performance
* failure to provide financial support to his spouse

6.  The applicant's commander notified him that he was initiating action to discharge him for unsatisfactory performance based on substandard duty performance.  The applicant was advised of his rights and the separation procedures involved.

7.  The applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He waived consideration of his case by a board of officers.

	b.  He waived personal appearance before an administrative separation board.

   c.  He indicated that he would not submit statements in his own behalf.
   
   d.  He acknowledged that military legal counsel for consultation was available to assist him and he waived that opportunity.

   e.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   f.  He acknowledged he understood that if he received a discharge which was less than honorable, he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade; however, the act of consideration by either board did not imply that his discharge would be upgraded.
   
   g.  The applicant and consulting counsel each placed their signature on the document.

8.  The immediate and intermediate commanders recommended approval of the applicant's separation action with an under honorable conditions (general) discharge.

9.  The separation authority approved the chain of command's recommendation for discharge of the applicant and directed he be discharged for unsatisfactory performance and that he be issued a General Discharge Certificate.

10.  The applicant's DD Form 214 shows he was discharged on 3 October 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  His service was characterized as under honorable conditions.

   a.  He had completed 1 year, 3 months, and 28 days of net active service this period.

   b.  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

11.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
   a.  Chapter 13 of the 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.

	b.  Chapter 3, 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.

	c.  Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory (emphasis added), but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under honorable conditions discharge should be upgraded to an honorable discharge because he had only two driving accidents and his performance during his military service was satisfactory.

2.  The applicant's contentions were carefully considered.  The evidence of record shows:

   a.  he was counseled for:

* disobeying an order from an NCO on three occasions
* receiving a ticket for speeding
* a pattern of substandard duty performance
* failure to provide financial support to his spouse

   b.  he received NJP on two occasions for:

* failing to obey a lawful general regulation by wrongfully having an accident by not utilizing a ground guide
* being disrespectful in language toward an NCO and disobeying a lawful order from an NCO

   c.  Thus, the evidence of record refutes the applicant's contention that he was discharged based only on two driving accidents.

3.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

4.  The evidence of record shows that a general discharge is a separation from the Army under honorable conditions and that it is issued to a Soldier whose military record is satisfactory (emphasis added), but not sufficiently meritorious to warrant an honorable discharge.

   a.  In his application, the applicant acknowledges that his performance while in military service was satisfactory (emphasis added).
   
   b.  Thus, the character of his service is commensurate with the applicant's own assessment of his performance while he was in military service.

   c.  Moreover, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  Therefore, in view of all of the foregoing, there is no basis for granting the 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)                                         AR20120003396



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ABCMR Record of Proceedings (cont)                                         AR20120003396



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