IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120008105 


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 and correction of his pay grade from E-3 to E-4.

2.  The applicant states:

* he was not told what type of his discharge he would be given when he was abruptly discharged from the military
* he was discharged while he was in Walter Reed Army Medical Center
* he was taken to Fort Dix, NJ, and discharged immediately after being released from the hospital
* his conduct did not warrant a general discharge and he had medical problems
* it has now been 29 years since he was discharged

3.  The applicant provides no additional evidence.

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 September 1977 and he held military occupational specialty 75E (Personnel Actions Specialist).  He served through a reenlistment and he was promoted to specialist four (SP4)/E-4 on 1 May 1981.

3.  He was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  On 3 January 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties.  His punishment consisted of a reduction to private first class (PFC)/E-3 and 14 days of extra duty.  He appealed his punishment but his appeal was denied.

5.  On 11 March 1983, he departed his Fort Hamilton, NY, unit in an absent without leave (AWOL) status, but he returned to military control on 15 March 1983.

6.  On 16 March 1983, he was reprimanded by his company commander for failing to attend three of five physical training sessions.

7.  On 2 April 1983, he again departed his unit in an AWOL status and he returned to military control on 4 April 1983.

8.  His records show he was frequently counseled by several members of his chain of command for various infractions including being late to duty, missing formation, being tardy, and/or failing to report.

9.  On 4 April 1983, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) due to unsatisfactory performance.  The immediate commander advised him that the least favorable characterization of service he could receive was under honorable conditions.

10.  On 4 April 1983, the applicant acknowledged receipt of the commander's notification and he subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights available to him.  He elected not to submit a statement on his own behalf.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions issued to him and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

11.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.

12.  On 4 April 1983, the applicant's intermediate commander recommended approval of the discharge.

13.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance with the issuance of a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 3 May 1983.

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 7 months, and 20 days of creditable active service and he had 8 days of lost time.  Additionally, this form shows in:

* item 4a (Grade, Rate or Rank) – "PFC"
* item 4b (Pay Grade) – "E3"
* item 12h (Effective Date of Pay Grade) – "83  01  03"

15.  On 28 March 1989, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  A general or honorable discharge is considered appropriate.

17.  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 available evidence shows his duty performance was tarnished by a record of NJP, instances of AWOL, and a history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  The evidence further 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 general discharge is commensurate with his overall record of military service.

2.  With respect to his argument:

	a.  The Army does not have nor has it ever had a policy wherein a characterization of service is upgraded due to passage of time.

	b.  Contrary to his contention that he was not told of the characterization of service when he was discharged, the evidence of record clearly shows he acknowledged receipt of the separation memorandum that stated the least favorable characterization of service he could receive was under honorable conditions.

	c.  Contrary to his contention that his conduct did not warrant a general discharge, the evidence of record shows he accepted NJP for dereliction of duty, he was frequently counseled by his chain of command, and he departed AWOL on at least two occasions.

	d.  The evidence of record shows he accepted NJP on 3 January 1983.  His punishment consisted of a reduction to PFC/E-3 as well as extra duty.  There is no evidence he was promoted to SP4/E-4 between the date he was reduced to the date he was discharged.  As such, his DD Form 214 correctly listed his rank/grade as PFC/E-3.

3.  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 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)                                         AR20120008105



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ABCMR Record of Proceedings (cont)                                         AR20120008105



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