BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120006339 


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 general discharge under honorable conditions to an honorable discharge.

2.  The applicant states he was young and immature and he made a lot of foolish mistakes.  He really doesn't want his immaturity to haunt him for the rest of his life.  His mother, who has since passed on, was a kidney dialysis patient and very ill.  He doesn't blame his behavior on any personal problems he may have had at the time, but he truly believes it played a part.

3.  The applicant provides his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Discharge Certificate
* driver's license
* social security card

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.  He enlisted in the Regular Army on 10 May 1988 at 21 years of age.  He completed basic combat and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).

3.  He accepted nonjudicial punishment (NJP) on:

	a.  13 December 1988, for failure to obey an order from a noncommissioned officer (NCO) and disrespect toward an NCO;

	b.  2 April 1990, for failure to go at the time prescribed to his appointed place of duty; and

	c.  29 April 1990, for wrongful appropriation of one set of night vision goggles and one M7 bayonet of a value of about $4,514.00, the property of the U.S. Government.  

4.  On 3 April 1990, he received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

5.  On 14 May 1990, his commander notified him he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a general discharge under honorable conditions.  The commander stated his recommendation for discharge was based on the applicant's receipt of NJP on three separate occasions.

6.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

7.  The applicant acknowledged receipt of the notification and that he had been afforded the opportunity to consult with appointed counsel, either military counsel of his own choice or civilian counsel at his own expense.  He declined the opportunity and failed to elect any of his rights.

8.  His commander recommended his separation from the Army prior to the expiration of his term of service under the provisions of chapter 13 of Army Regulation 635-200, citing:

	a.  the applicant had accepted NJP on three occasions and

	b.  despite attempts to rehabilitate and develop him as a satisfactory Soldier, further effort is unlikely to succeed.  Rehabilitation is impractical in that it is likely that the circumstances forming the basis for initiation of separation proceedings will continue to recur.

9.  On 14 May 1990, the appropriate authority:

* waived the requirement for a rehabilitative transfer
* directed his discharge under honorable conditions (general)
* directed his denial of transfer to the U.S. Army Reserve as the applicant did not possess the potential for useful service under the conditions of full mobilization

10.  On 29 May 1990, he was discharged due to unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  He completed 2 years and 29 days of active service that was characterized as under honorable conditions.

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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

	b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	c.  When the reason for separation required the notification procedure, the commander notified the Soldier in writing that his or her separation had been recommended.  The commander cited specific allegations on which the proposed action was based.  The Soldier was further advised of the following rights:

* to consult with consulting counsel within a reasonable time (not less than 3 duty days) – Soldiers may also consult with civilian counsel retained at their own expense
* to submit statements in his or her own behalf
* to obtain copies of documents that were sent to the separation authority supporting the proposed separation
* to a hearing before an administrative separation board if he or she had 6 or more years of total active and Reserve service on the date of initiation of recommendation for separation

	d.  If the Soldier refused to consult with counsel and/or declined to respond to the waiver of rights, such declination constituted a waiver of his or her rights.

	e.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was young and immature.  However, the records show he was 21 years of age at the time of his enlistment and 23 years of age at the time of his discharge.  Many Soldiers enlisted at a younger age and went on to complete their enlistments and received honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  He accepted NJP on three occasions and he did not complete his contracted term of service.  His commander's recommendation for his separation stated that further effort was unlikely to succeed despite attempts to rehabilitate him and develop him as a satisfactory Soldier.  Further, the circumstances forming the basis for initiation of separation proceedings would continue to recur.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  He was advised of his right to counsel and he declined the opportunity.  He declined to make an election of his rights under Army Regulation 635-200.  His refusal to consult with counsel and/or respond to the waiver of his rights constituted a waiver of his rights.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, there is no basis to upgrade 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 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)                                         AR20120006339



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ABCMR Record of Proceedings (cont)                                         AR20120006339



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