BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003494 


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 discharge.

2.  He states he believes his contract was violated because an overseas billet was requested and then "pulled."  He states "his 'failure to adapt' was an easy excuse to kick him out."  

3.  He provides no documentation 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.  On 29 March 1985, the applicant enlisted in the Regular Army for a period of 3 years and for training in military occupational specialty (MOS) 57H (Cargo Specialist).  
3.  His record is void of documentation showing he was promised an overseas assignment in conjunction with his enlistment.  

4.  After completing initial entry training, he was awarded MOS 57H and assigned to a unit at Fort Eustis, VA.  

5.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, twice:

* on 13 February 1986 for missing formation and negligently failing to report to his place of duty
* on 1 May 1986 for wrongfully using marijuana

6.  His record includes a memorandum, subject:  Statement of Counseling in Support of Administrative Action, dated 12 June 1986.  The memorandum shows he was counseled for misconduct on:

* 5 November 1985 for dishonored checks
* 4 February 1986 for failure to follow instructions, missing formation, and disobeying an order from a noncommissioned officer
* 8 April 1986 for a positive urinalysis
* 13 and 14 May 1986 for missing an inspection

7.  On 13 June 1986, his commander notified him of his intent to initiate action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, due to his unsatisfactory performance.  

8. On 18 June 1986, he consulted with counsel, who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  

9.  After consulting with counsel, he elected not to submit statements in his own behalf, and he indicated he desired to seek legal counsel concerning the separation action.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge (GD) were to be issued to him.   

10.  On 19 June 1986, the separation authority directed his discharge under the provisions of Army Regulation 635-200, chapter 13, and directed he be issued a GD Certificate.  On 25 June 1986, he was discharged accordingly.  

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  

	a.  Chapter 13 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.

	b.  Paragraph 3-7a provides that an honorable discharge (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 record is void of documentation showing the applicant was promised an overseas assignment in conjunction with his enlistment or that his enlistment contract was violated in any way.  

2.  He received NJP on two occasions, and he was counseled for misconduct on several occasions.  Based on this misconduct, his chain of command was clearly justified in determining that his performance was unsatisfactory and warranted his discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.








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)                                         AR20120003494





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ABCMR Record of Proceedings (cont)                                         AR20120003494



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