IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009270 


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 under honorable conditions be upgraded.

2.  The applicant states:

* he enlisted in the Army because his father was in the Army
* he was never a good runner and failed many runs which led to his discharge for unsatisfactory performance
* he completed his Reserve obligation and was honorably discharged on 16 September 2003
* he served his country as best as he could at the time

3.  The applicant provides a copy of his Honorable Discharge Certificate from the U.S. Army Reserve (USAR).

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 USAR Delayed Entry/Enlistment Program (DEP) for a period of 8 years on 14 September 1995.  On 9 January 1996, he was discharged from the USAR DEP and enlisted in the Regular Army on 10 January 1996.  

3.  The applicant completed training and was awarded military occupational specialty 14S (Avenger Crewmember).  The highest rank/grade he attained while on active duty was private/E-2.

4.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, in his DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552), the applicant provides the following information:

* he was absent without leave during the period 5 to 27 May 1997
* he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows, on 18 July 1997, the applicant was released from active duty and transferred to the USAR Control Group (Annual Training), due to unsatisfactory performance, with service characterized as under honorable conditions (general).  His DD Form 214 also shows he completed 1 year, 4 months, and 24 days of creditable active military service with 20 days of lost time.   

6.  On 16 September 2003, the applicant was honorably discharged from the USAR.

7.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided 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 recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Soldiers separated because of unsatisfactory performance under this regulation were characterized as honorable or under honorable conditions.

8.  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's request to upgrade his general discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  Although his record is void of the specific facts and circumstances surrounding his discharge action on 18 July 1997, he stated he was AWOL and received nonjudicial punishment under the provisions of Article 15, UCMJ. 

3.  A properly-constituted DD Form 214 identifies the reason and characterization of his separation on 18 July 1997.  This document carries with it a presumption of government regularity in the discharge process.

4.  The honorable discharge that he received from the USAR has no bearing on his active duty separation, which occurred over 5 years earlier on 18 July 1997.

5.  Therefore, absent evidence to the contrary, it is concluded his separation processing was accomplished in accordance with the applicable regulation and the requirements of law and regulation were met and his rights were fully protected throughout the separation process.

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)                                         AR20120009270



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ABCMR Record of Proceedings (cont)                                         AR20120009270



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