IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120011606 


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 be upgraded to honorable.

2.  The applicant states:

* he was returned to duty while severely ill and his performance was negatively impacted
* he should have remained in a medical holding company while receiving treatment

3.  The applicant provides:

* Résumé
* Diplomas
* Certificates of recognition
* Character reference letters
* General Discharge Certificate
* 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.  Having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army (RA) on 1 October 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialty 91B (medical specialist).

3.  Records show the applicant's general counseling statements were lost but the counseling pertained to duty performance and promotion potential.

4.  On 2 March 1983, nonjudicial punishment was imposed against the applicant for failure to repair.

5.  Records show NJP was imposed against him on 11 October 1983 for Article 134.  No other details are available.

6.  On 5 December 1983, he underwent a separation physical examination and was found qualified for separation.  He indicated he was in "Good" health on his Standard Form 93 (Report of Medical History), dated 5 December 1983.

7.  He received a letter of reprimand on 16 December 1983 for using marijuana.

8.  On 21 December 1983, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The unit commander cited the applicant had repeatedly shown signs of immaturity and lack of responsibility, and his duty performance and failure to properly prepare for the 
E-5 board indicates he has no motivation or self discipline.

9.  On 27 December 1983, he consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged he understood that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected to submit a statement in his own behalf.  In summary, he stated:  

* He was treated unfairly


* He was 17 years when he joined the USAR and then the RA when he was 18 years old
* He enjoyed the Army
* He realizes he make mistakes
* If allowed to go to another unit he would Soldier at 110%  

10.  On 29 December 1983, the separation authority approved the recommendation for separation under the provisions of Army Regulation 
635-200, chapter 13 and directed the applicant be furnished a general discharge.
He was discharged on 3 January 1984 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had served 3 years, 3 months, and 3 days of creditable active service.  

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

12.  He provided two character reference letters from an employer and his pastor.  They attest:

* He has excellent character
* He is a conscientious and hard worker with good attention to detail
* He is an active member of the church
* He is a wonderful family man

13.  He also provided various diplomas and certificates of recognition he earned subsequent to his discharge.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides 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.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.




15.  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.  Although he contends he was severely ill and his performance was negatively impacted, evidence shows he indicated his health was "Good" on 5 December 1983.

2.  The character reference letters submitted on behalf of the applicant fail to show his discharge was unjust and should be upgraded.

3.  His post-service accomplishments are commendable.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  His record of service included adverse counseling statements, a letter of reprimand, and two NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120011606



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ABCMR Record of Proceedings (cont)                                         AR20120011606



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