BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120017423 


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, in effect, his general, under honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states he was discharged for unsatisfactory performance.  During his last year of service a group of noncommissioned officers (NCO) targeted him out of jealously.  He arrived at the unit from the 82nd Airborne Division, Fort Bragg, NC.

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.  The applicant's records show he enlisted in the Regular Army on 27 July 1979 and he held military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  On 9 June 1982, he was assigned to Company C, 75th Support Battalion, Fort Knox, KY.

4.  On 1 December 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for missing movement through neglect.

5.  Between March 1983 and May 1984, the applicant was counseled for various infractions to include failure to complete his assigned duties, missing formation, and failure to report for duty.

6.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 21 August 1984, for being disrespectful in language towards an NCO
* 12 September 1984, for failing to go to his appointed place of duty and for wrongfully possessing marijuana

7.  On 13 November 1984, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsatisfactory performance.  The commander stated the specific reasons were the three Article 15's, the adverse counseling statements, and the letter of reprimand (for the possession of marijuana) the applicant had received.  The commander further stated if his recommendation was approved, the least favorable characterization of service the applicant could receive was under honorable conditions.

8.  On 13 November 1984, the applicant acknowledged receipt of the proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  He was advised of the procedures and rights available to him.  He waived consideration of his case by a board of officers and did not submit a statement on his own behalf.

9.  On 20 November 1984, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and directed the issuance of a General Discharge Certificate.  On 21 November 1984, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he was discharged in the rank of private under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an under honorable conditions characterization of service.  He completed 5 years, 3 months, and 25 days of net active service.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP's he received on three occasions for missing movement, being disrespectful towards an NCO, wrongfully possessing marijuana, and for failing to be at his appointed place of duty.  Accordingly, his immediate commander initiated separation action against him.

2.  His 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 reason for separation were therefore appropriate considering all the facts of the case. 

3.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled 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)                                         AR20120017423



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ABCMR Record of Proceedings (cont)                                         AR20120017423



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