IN THE CASE OF:	

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120008461 


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 (GD) to an honorable discharge.

2.  The applicant states:

* he was handpicked to work the "FAADS/LOS-FH" special project with the  defense contractor Martin Marietta
* he had an excellent record that reflects leadership and dedication to his unit
* he received an Army Achievement Medal and Army Commendation Medal for outstanding performance of duty while with the defense contractors
* the unit got a new first sergeant who discharged anyone whom he disliked
* the first sergeant was later discharged for inappropriate use of fellow Soldiers
* he believes his treatment was unfair

3.  The applicant provides no supporting documents.

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 a period of 4 years on 21 January 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16R (Vulcan Crewmember).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant's records reveal the following:

	a.  Multiple counseling statements for various acts of misconduct:

* failure to prepare for inspection by the command sergeant major 
* failure to repair (twice)
* failure to be at his proper place of duty and contempt of court 
* a pattern of misconduct (twice)

	b.  Acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice:

* on 12 March 1990, for being absent without leave (AWOL) and breaking a window pane; his punishment included reduction in rank, which was suspended 180 days and the suspension vacated on          6 August 1990 due to willfully disobeying a lawful order
* on 30 August 1990, for failure to obey a lawful order to be prepared for inspection

	c.  A Bar to Reenlistment Certificate for contempt of court (lack of payment of temporary alimony), which demonstrated no potential for future service.

4.  On 28 August 1990, the applicant’s 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), by reason of unsatisfactory performance, with a General Discharge Certificate.

5.  On 6 September 1990, the immediate commander recommended the applicant be separated from the U.S. Army prior to expiration of his term of service because he was substandard in the performance of duties and responsibilities.  The applicant 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.  He was also advised of the procedures/rights that were available to him.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life if a GD was issued to him and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant declined to make a statement in his own behalf.

6.  On 6 September 1990, the applicant acknowledged receipt of the commander's recommendation to separate him and on the same date he waived his rights to legal counsel.  

7.  On 19 September 1990, a legal review was requested and on 24 September 1990 the separation action was found to be administratively correct.

8.  On 25 September 1990, the separation authority approved the applicant’s discharge action under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the applicant's service be characterized as under honorable conditions (general).  

9.  Accordingly, the applicant was discharged on 2 October 1990.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 3 years, 8 months, and 12 days of creditable active military service.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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, in pertinent part, 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.

12.  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 applicant contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling or disciplinary action by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  

3.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  All requirements of law and regulation met and his were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

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)                                         AR20120008461



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ABCMR Record of Proceedings (cont)                                         AR20120008461



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