IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010010 


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.

2.  The applicant states he made a mistake due to having a newborn son and wife at that time.  He asks that the Board consider his age at the time and that he has been in management for more than 20 years leading employees.

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.  His military records show he enlisted in the Regular Army on 2 July 1985 at the age of 17 years and 11 months.  He was awarded military occupational specialty 44B (Metal Worker Repairer).  The highest rank/grade he held was private/E-2.

3.  His records contain various counseling statements for offenses including insubordination, inappropriate language toward an officer, and other negative behavior.

4.  His records show he accepted nonjudicial punishment on two separate occasions for failure to go at the time prescribed to his appointed place of duty on at least eight separate dates.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 21 May 1986, indicates he was barred from reenlistment due to two instances of nonjudicial punishment and poor counseling statements.

6.  On 27 June 1986, the applicant's commander informed him that he was recommending his separation from military service for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  His commander indicated the reason for the proposed action was that the applicant had a bad attitude as far as being in the military was concerned.  He had received nonjudicial punishment on two occasions.  He had a blatant disregard for authority and showed no potential or desire to succeed in the Army.

7.  On 27 June 1986, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action taken by him in waving his rights.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge were issued to him.  He waived his rights in conjunction with this action.  He did not choose to submit a statement in his own behalf.

8.  On 18 July 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with his service characterized as under honorable conditions.  He completed 1 year and 17 days of creditable active service.

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

10.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, stated a Soldier might be separated per this chapter when it is determined that he/she is unqualified for further military service because of unsatisfactory performance.  It further stated commanders would separate a Soldier for unsatisfactory performance when it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions as warranted by their military record.

11.  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.  His age at the time of his enlistment and his statement that he has been in management for more than 20 years leading employees are noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, while his career accomplishment is a positive achievement, neither this nor his age at the time can be used as a reason to change a properly-issued discharge.

2.  His records indicate he was counseled repeatedly for inappropriate language toward his superiors.  He received two instances of nonjudicial punishment for failure to go at the time prescribed to his appointed place of duty on numerous occasions.  Such conduct would certainly warrant an administrative separation from the Army.

3.  Based on the applicant's record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for a fully honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120010010



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ABCMR Record of Proceedings (cont)                                         AR20120010010



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