IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120010319 


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 upgrade of his general discharge.

2.  The applicant states he was living in the barracks because he and his wife were separated.  On one occasion when his platoon sergeant was visiting him in his room he was showing him pictures of his family.  While his platoon sergeant was looking at the pictures he remembered some pictures of his wife that he didn't want him to see, so he grabbed the pictures and told him that he wanted to remove some pictures of his wife that he didn't want him to see.  Afterwards, he stacked the pictures a certain way so he would know if anyone looked at them without his knowledge.  A few days later his platoon sergeant was on charge of quarters duty with access to all the rooms.  That evening when he was walking back from dinner he saw the light was on in his room.  He immediately went to his room and determined the pictures were stacked differently.  He then went to his platoon sergeant and asked him why he looked at his pictures, which led to an altercation.  He states he understands receiving nonjudicial punishment for putting his hands on a superior, but he does not think it was fair that he was given a general discharge from the Army.  He adds that his platoon sergeant was not disciplined as a result of this incident.  He further states that he has become a more mature and productive part of society. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).


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 27 August 1984.  He was awarded the military occupational specialty of 52D (Power Generator Equipment Operator).  The highest rank/grade he held was specialist/E-4.

3.  His records contain numerous counseling statements.  These statements indicate he performed poorly on his skill qualification test, displayed a lack of initiative, missed formations, and passed insufficient funds checks. 

4.  His records show he accepted nonjudicial punishment on three separate occasions for misconduct and one occasion for driving while intoxicated.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 2 March 1987, indicated he was barred from reenlistment due to nonjudicial punishment and a letter of indebtedness.

6.  On 27 March 1987, the applicant's commander informed him that he was recommending his separation from military service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  His commander indicated the reasons for his proposed action were because of the applicant's unsatisfactory performance, based on his poor counseling statements and four instances of nonjudicial punishment.

7.  On 27 March 1987, he 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 less than honorable discharge was issued to him.  He waived his rights in conjunction with this action.  

8.  He submitted a statement in his own behalf indicating he understood why he was being administratively separated from the Army.  He stated that his earlier service at Fort Campbell resulted in his receiving a second Army Achievement Medal.  He stated that he felt he should be given no worse than a general discharge.  

9.  On 7 April 1987, he was released from active duty under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with his characterization of service of under honorable conditions.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed 2 years, 7 months, and 11 days of creditable active service.

10.  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.

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, states a Soldier may be separated per this chapter when it is determined that he/she is unqualified for further military service because of unsatisfactory performance.  It further states commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander’s judgment, the Soldier will 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 will be characterized as honorable or under honorable conditions as warranted by their military record.

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.  He contends his general discharge for putting his hands on a superior was unfair.  However, his records indicate he was counseled in regard to his repeated failure to go at the time prescribed to his appointed place of duty, missing formation, poor duty performance, and indebtedness.  His record shows he accepted nonjudicial punishment on four occasions.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  Becoming a more mature and productive part of society at this time does not mitigate the basis for his discharge.  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 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)                                         AR20120010319



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ABCMR Record of Proceedings (cont)                                         AR20120010319



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