BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004566 


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 be upgraded to a fully honorable discharge.

2.  The applicant states that he desires to have a second honorable discharge.

3.  The applicant provides no additional documents with 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 April 1982 for a period of 3 years and training as a cannon crewman.  He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Fort Carson, Colorado for his first assignment.
3.  On 19 September 1983, he was transferred to Hawaii and he was promoted to the pay grade of E-4 on 1 February 1984.  

4.  On 5 December 1984, he was honorably discharged for the purpose of immediate reenlistment and on 6 December 1984 he reenlisted for a period of 3 years and assignment to Fort Knox, Kentucky.  On 9 May 1985, he was transferred to Fort Knox. 

5.  On 26 August 1985, nonjudicial punishment (NJP) was imposed against him for the wrongful use of cocaine.

6.  On 4 September 1985, a local bar to reenlistment was imposed against the applicant.

7.  On 21 April 1986, NJP was imposed against him for disobeying a lawful order from a noncommissioned officer (NCO), being disrespectful in language towards an NCO, and communicating a threat towards an NCO.

8.  On 13 June 1986, NJP was imposed against him for stealing government phone services by making unauthorized long distance phone calls.

9.  On 19 June 1984, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to repeated counseling sessions, and substandard duty performance.

10.  After consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

11.  On 19 June 1984, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

12.  Accordingly, on 23 June 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a General Discharge Certificate.  He had served 4 years, 2 months, and 18 days of active service.

13.  In May 1988, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 11 January 1989 after considering all of the available evidence, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.
14.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

15.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  Given his record of misconduct, his service simply does not rise to the level of a fully honorable discharge.  

3.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20120004566



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ABCMR Record of Proceedings (cont)                                         AR20120004566



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