IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006882 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he did not understand what he was signing at the time and believes he needed more information before he signed his discharge.  

3.  The applicant provides no documentary evidence 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.  The record shows the applicant enlisted in the Regular Army for 3 years, on 
20 February 1985, and he was trained in and awarded military occupational specialty (MOS) 16R (Vulcan Crewmember).  
3.  The record confirms the applicant attained the rank of private first class (PFC)/E-3 on 1 October 1985; this is the highest rank he held on active duty.  The record documents no acts of valor or significant achievement and confirms he was reduced to private (PVT)/E-2 for cause on 22 January 1987.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):

* on 7 May 1986 for wrongfully using marijuana
* on 22 January 1987, for damaging a vehicle windshield that belonged to another Soldier  

5.  On 3 March 1987, the unit commander notified the applicant that action was being taken to initiate the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance and that it was being recommended that the applicant receive a GD.  The unit commander cited the applicant’s patterns of unsatisfactory performance as the basis for taking the separation action.  

6.  On 9 March 1987, the applicant acknowledged receipt of the notification of separation action.  He consulted with legal counsel and after being advised of the basis for the contemplated separation action and its effects, and of the rights available to him, he completed an election of rights in which he elected not to submit statements in his own behalf.  

7.  On 11 February 1987, the separation authority approved the applicant’s separation action for unsatisfactory performance and directed the applicant receive a GD.  On 18 March 1987, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 
2 years and 28 days of creditable active military service and he accrued 1 day of time lost due to being absent without leave (AWOL). 

8.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations, or that he ever previously applied to this Board for an upgrade of his discharge.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:   

   a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.
   
   b.  Paragraph 3-7a of the same regulation provides that an 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 applicant's request to upgrade his discharge because he did not receive enough information at the time of his discharge processing has been carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms the applicant consulted with legal counsel and was thoroughly informed of his rights in connection with the separation action during the discharge process.  It further shows after receiving this legal counsel, the applicant elected not to submit statements in his own behalf.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes his acceptance of NJP on two separate occasions.  These incidents of misconduct along with his established pattern of misconduct clearly diminished the overall quality of his service below that meriting a fully HD.  As a result, his record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.











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)                                         AR20120006882



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006882



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1