BOARD DATE: 8 November 2012
DOCKET NUMBER: AR20120009058
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 honorable.
2. The applicant makes no statement.
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 29 July 1980 and was trained in and awarded military occupational specialty 15E (Pershing Missile Crewmember).
3. The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three separate occasions between 27 April and 14 October 1983, for a myriad of disciplinary infractions that include breaking restriction, being absent without leave, and destroying government property.
4. His record documents no acts of valor or significant achievement.
5. On 11 October 1983, the applicant's unit commander notified him that he was initiating action to separate the applicant for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13. The applicant consulted with legal counsel and he was advised of the basis of the contemplated action to separate him for unsatisfactory performance and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights.
5. On 18 October 1983, the separation authority approved the applicant's discharge for unsatisfactory performance and directed the applicant receive a general discharge. On 21 October 1983, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private first class/E-3 after completing 3 years, 2 months, and 23 days of creditable active military service.
6. The applicant's record is void of any indication that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 requires that separation action be taken when in the commander's judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.
8. Army Regulation 635-200, paragraph 3-7a, states 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's request to upgrade his discharge has been carefully considered.
2. The evidence of record confirms the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance was accomplished in accordance with the applicable regulation based on his unsatisfactory performance as evidenced by his record of nonjudicial punishment.
3. Absent any evidence of an error or injustice in the applicant's separation processing, there is an insufficient evidentiary basis to support granting the requested relief.
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) AR20120009058
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ABCMR Record of Proceedings (cont) AR20120009058
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