IN THE CASE OF:	

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120004455


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, from under honorable conditions to an honorable discharge.

2.  The applicant states he was told his discharge could be upgraded after          6 months had passed.

3.  The applicant provides a Standard Form (SF) 180 (Request Pertaining to Military Records).

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 23 March 1982.  He completed training and was awarded military occupational specialty 63N (M60A1/A3 Tank System Mechanic).

3.  On 2 March 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his unit from on or about 24 January to 
23 February 1983.

4.  On 10 March 1983, his immediate commander recommended that he be barred from reenlistment, citing his military conduct was below Army standards. On 23 March 1983, his battalion commander approved the bar to reenlistment.

5.  On 22 April 1983, his immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander stated the applicant's conduct would not improve with rehabilitative attempts on the part of the Army.  He further opined the applicant's separation action was for the good of the service and the organization.  

6.  On 24 April 1983, after meeting with counsel, the applicant acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights.  He waived a personal appearance and consideration of his case by a board of officers.  Additionally, he declined to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

7.  On 27 April 1983, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  

8.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he receive an under honorable conditions (general) discharge.  

9.  On 10 May 1983, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, with an under honorable conditions (general) characterization of service.  He was credited with the completion of 
1 year and 17 days of net active service during this period of active duty.  The highest rank/grade he attained during his military service was private (PV2)/E-2.

10.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  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.

11.  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 under honorable conditions (general) discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  The applicant's duty performance was sub-standard.  Additionally, he was AWOL for over 30 days, resulting in NJP and his bar to reenlistment upon his return.  Accordingly, his chain of command initiated separation action against him.

4.  The available evidence shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His under honorable conditions (general) discharge is commensurate with his overall record of military service.

5.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20120004455



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