IN THE CASE OF:	  

		BOARD DATE:  30 August 2012

		DOCKET NUMBER:  AR20120003468 


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 characterization of service for the period ending 13 December 1989 from general under honorable conditions to fully honorable.  He also requests that his record be corrected to show he is eligible to use his G.I. Bill benefits or return of the money he paid into the G.I. Bill.

2.  He states that after serving 21 months of a 2-year enlistment and paying $1,200.00 into the G.I. Bill, he was offered an "early out."  He attests he told his leadership that he was not interested if it would affect his honorable discharge or G.I. benefits.  They assured him it would not affect his status or benefits; therefore, he accepted the early out and later found out that his service was characterized as "under honorable conditions (general)" and he never received his benefits.  Six years later, he was honorably discharged from the Individual Ready Reserve (IRR).  As a result, he believes he is entitled to his benefits and/or the money back that he paid into the G.I. Bill and an updated DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  He 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 for a period of 2 years on 2 March 1988 and he held military occupational specialty 77F (Petroleum Supply Specialist).  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.  However, at the time of release from active duty he held the rank/pay grade of private/E-2.

3.  His record contains a DD Form 2366 (Veterans' Educational Assistance Act of 1984 (G.I. Bill)) which shows he acknowledged his understanding that he was eligible for the G.I. Bill of 1984 and was automatically enrolled.  He further acknowledged his understanding of the following conditions:

	a.  He had the option to disenroll immediately if he did not desire to participate in the G.I. Bill of 1984, but if he did so, the option to enroll would not be available to him at a later date.

	b.  If he remained enrolled in the G.I. Bill of 1984, $100 per month would be deducted from his basic pay for EACH (emphasis added) of the first full 12 months of active duty and WILL NOT BE REFUNDED (emphasis added).

	c.  He must complete 2 years of service before he was entitled to $250 per month for 36 months as a result of his 2 year obligation.

	d.  He must receive an honorable discharge for service which established entitlement to the G.I. Bill of 1984.

4.  His record reveals he was the recipient of numerous adverse counseling sessions for the following offenses:

* absenting himself from his place of duty on several occasions
* failing to report to his appointed place of duty at the time prescribed on several occasions
* disobeying a lawful order from a noncommissioned officer (NCO) on several occasions
* being disrespectful towards an NCO on several occasions
* dereliction of duty

5.  His record contains a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 26 September 1989, which shows he received an oral reprimand for violating Article 28 of the Uniform Code for Military Justice (UCMJ) by committing assault.

6.  His record reveals his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on two occasions for violating:

* Article 86 by failing to report to his appointed place of duty at the time prescribed on several occasions
* Article 87 by missing movement
* Article 91 by being disrespectful in language towards an NCO
* Article 92 by being derelict in the performance of his duties

7.  On 23 October 1989, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit commander also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.
He acknowledged receipt of the unit commander's notification on the same date.

8.  On 26 October 1989, having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement in his own behalf. 

9.  On 30 October 1989, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited as the basis for this action the applicant:

* received two Article 15s for the aforementioned reasons
* was charged by military police with assault
* received numerous adverse counseling for the aforementioned reasons
* was absent from work without leave for 2 days
* failed to respond to rehabilitative attempts

10.  On 21 November 1989, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed the issuance of a General (Under Honorable Conditions) Discharge Certificate.  He noted the applicant had not completed his statutory obligation; therefore, transfer to the IRR was warranted.

11.  On 13 December 1989, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 shows in:

* Block 24 (Character of Service) the entry "Under Honorable Conditions (General)"
* Block 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 13"
* Block 26 (Separation Code) the entry "JHJ"
* Block 28 (Narrative Reason for Separation) the entry "Unsatisfactory Performance"

12.  U.S. Army Reserve Personnel Center, St. Louis, MO, Orders D-03-624514, dated 5 March 1996, show the applicant was honorably discharged from the U.S. Army Reserve on 5 March 1996.

13.  The applicant's record is void of evidence showing he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to fully honorable 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 upgrade of his characterization of service for the period ending 13 December 1989 from general under honorable conditions to fully honorable was carefully considered and determined to lack merit.

2.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his characterization of service from general under honorable conditions to fully honorable

4.  At the time of his enlistment, the applicant acknowledged his understanding that he was eligible for the G.I. Bill of 1984 and was automatically enrolled.  He further acknowledged his understanding of the conditions to retain eligibility and the fact that payroll deductions for participating in the G.I. Bill of 1984 WILL NOT BE REFUNDED (emphasis added).  In view of the facts that he failed to complete 2 years of active service and failed to receive an honorable discharge for the service which established entitlement to the G.I. Bill of 1984, he is not entitled to the requested relief of being eligible to use his G.I. Bill benefits or to be reimbursed the money he paid into the G.I. Bill.

5.  His contention that he was subsequently honorably discharged from the IRR is noted; however, it has no bearing on his previous period of active duty Regular Army service.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.


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)                                         AR20120003468



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ABCMR Record of Proceedings (cont)                                         AR20120003468



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