BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120006614 


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, in effect, that his general discharge be upgraded.  He also requests that the separation authority and narrative reason for separation be changed.

2.  The applicant states, in effect, that he does not see how his narrative reason for separation could be classified as unsatisfactory performance because he received the Army Service Ribbon, Marksman Marksmanship Qualification Badge, and Expert Marksmanship Qualification Badge.

3.  The applicant provides a letter to the Army Review Boards Agency, Chief, Congressional and Special Actions, dated 2 April 2012.

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 4 years on 15 July 1982.  He completed training as a cannon crewman.

3.  The applicant was counseled on seven separate occasions between 21 March and 2 June 1983 for the following offenses:

* failure to repair
* being late for formation
* unsatisfactory performance and appearance
* failure to prepare his room for inspection
* misconduct and the lack of a positive reaction to rehabilitative actions
* being disrespectful towards noncommissioned officers (NCO)

4.  On 22 March 1983, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order and being disrespectful in language toward an NCO.

5.  On 10 June 1983, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He acknowledged receipt of the notification and after consulting with counsel he waived his right to submit a statement in his own behalf.  The appropriate authority approved the recommendation and directed the applicant's release from active duty (REFRAD) and placement in the Individual Ready Reserve.

6.  On 1 July 1983, the applicant was REFRAD under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 11 months and 17 days of net active service this period.  He received a General Discharge Certificate. 

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following awards:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge (Rifle M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation 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 reoccur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership is unlikely

10.  The 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 states 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.

12.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The Army Service Ribbon is awarded to members of the U.S. Army for successful completion of initial entry training.

	b.  U.S. Army Basic Marksmanship Qualification Badges are awarded to indicate the degree in which an individual, military or civilian, has qualified in a prescribed record course and an appropriate bar is furnished to denote each weapon with which the individual qualified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  

2.  His records show that he was counseled on seven separate occasions for numerous offenses.  He also accepted NJP for disobeying a lawful order and for being disrespectful towards an NCO.

3.  He was REFRAD under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He provides no evidence to show the character of his service, separation authority, or the narrative reason for separation is incorrect.  

4.  Army Regulation 600-8-22 prescribes the basis for the awards shown on his DD Form 214.  The fact that he received those awards is an insufficient justification for granting the requested relief.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120006614



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ABCMR Record of Proceedings (cont)                                         AR20120006614



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