IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012213 


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 that his general discharge be upgraded to an honorable discharge.

2.  He states:

* he doesn't feel that his service was anything other than honorable
* he did what was asked of him and never disrespected his commander
* he kept himself and his uniform in order
* when he was in the 2d Battalion, 78th Field Artillery Regiment, in Germany, he received a citation for an outstanding room

3.  He provides no additional documents.

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 September 1980.

3.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice on:

   a.  24 March 1982, for leaving his appointed place of duty, without authority on 22 February 1982 and willfully disobeying a lawful order from a noncommissioned officer; 
   
   b.  24 August 1982, for wrongfully possessing 1.2 grams of marijuana, failure to go to his appointed place of duty, and remaining absent from 0530 to 2400 hours on 16 August 1982; and 

   c.  16 September 1982, for breaking restriction.

4.  On 24 September 1982, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-4, for unsuitability.  The commander cited unsatisfactory performance and his ability to maintain acceptable standards of Soldierly conduct in both his on and off duty behavior.  The unit commander advised the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, and to obtain copies of documents that would be sent to the separation authority supporting the proposed separation action.  He was also advised that he could waive these rights in writing.  

5.  On 5 October 1982, having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation action, its effects, and the rights available to him.  He was also informed that if he was issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He did not submit a statement in his own behalf.

6.  On 7 October 1982, his unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 13-4 for unsatisfactory performance.  The unit commander cited his disciplinary history, unsatisfactory report from the Correctional Custody Facility, and apathy as the basis for this action.

7.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation) which shows he had a normal evaluation.  The examining physician also found he had the mental capacity to understand and participate in the discharge proceedings.

8.  On 27 October 1982, the separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-4, with a General Discharge Certificate.

9.  On 1 November 1982, he was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 shows he was issued an under honorable conditions (General) discharge.  Block 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.  Block 28 (Narrative Reason for Separation) shows "Unsatisfactory Performance."  Item 29 (Dates of Time Lost During This Period) shows none.

10.  There is no evidence that he applied to the Army Discharge Review Board for upgrade of his discharge.

11.  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.

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.  The applicant's contention that his discharge should be upgraded was found to lack merit.
2.  His record reveals a disciplinary history that includes unsatisfactory performance, apathy and his acceptance of three Articles 15 under the UCMJ.

3.  Therefore, his service does not warrant an upgrade of his discharge to an honorable discharge.

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)                                         AR20120012213





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ABCMR Record of Proceedings (cont)                                         AR20120012213



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