IN THE CASE OF:
BOARD DATE: 23 May 2013
DOCKET NUMBER: AR20120019836
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 to honorable.
2. The applicant states he enlisted and served the nation and protected the constitution with dignity and honor. He has conducted himself in a manner to reflect his growth as a person and a responsible member of society since his discharge. He has been married for 22 years and has raised four children. He doesn't feel one company-grade Article 15 under the Uniform Code of Military Justice (UCMJ) warrants less than an honorable discharge and he wants his children to know he served honorably.
3. The applicant provides copies of his two DD Forms 214 (Certificate of Release from Discharge from Active Duty) and DA Form 2-1 (Personnel Qualification Record Part II).
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 Army National Guard and completed initial active duty for training in March 1986. He then enlisted in the Regular Army in pay grade E-2 on 29 December 1986.
3. The applicant was advanced to pay grade E-3 on 29 April 1987 and to pay grade E-4 on 1 July 1987.
4. His records show he was counseled for:
* having deficiencies in military appearance and behavior
* being late for formation on numerous occasions
* writing bad checks
* missing Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) appointments
* being disrespectful
* failing to follow instructions
* repeatedly failing to return overdue books to the post library he responded that he thought this was a minor incident and a ridiculous waste of time
* not taking care of the bad check as he had been instructed to do and for writing a post-dated check in order to do so
* failing to obey an order
* unsatisfactory performance
5. On 7 August 1987, the applicant received nonjudicial punishment (NJP) from this company commander under the provisions of Article 15, UCMJ, for being absent from his place of duty by missing his ADAPCP appointment.
6. On 10 September 1987, he again received NJP for missing a 0900-1500 hours class on 2 consecutive days.
7. On 1 December 1987, the applicant was notified that he was being considered for separation with a general discharge for unsatisfactory performance. He was informed of his rights.
8. A mental status evaluation, dated 3 December 1987, shows the applicant's behavior was normal. He was fully alert, fully oriented, and displayed a flat mood. His thinking process was clear, his thought content was normal, and is memory was good. The evaluator's impression was that the applicant was able to understand and participate in the evaluation and was mentally responsible. There was no psychiatric diagnosis and the applicant was considered not amenable to counseling or treatment. He was cleared for any administrative action deemed appropriate by the command.
9. The applicant consulted with counsel and elected to not submit statements in his own behalf. He acknowledged that he could expect to encounter substantial prejudice in civilian life due to the character of the discharge.
10. The company commander recommended his separation with a general discharge under honorable conditions. The separation authority approved the recommendation and directed issuance of a General Discharge Certificate.
11. On 21 December 1987, the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, with a general discharge for unsatisfactory performance.
12. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a states 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.
b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
c. At that time, chapter 13 provided for separation due to unsatisfactory performance when the individual would not become a satisfactory Soldier in the commander's judgment; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.
DISCUSSION AND CONCLUSIONS:
1. Clearly, the applicant received more than one NJP. His misbehavior and poor performance were fully documented and clearly not honorable.
2. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.
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) AR20120019836
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ABCMR Record of Proceedings (cont) AR20120019836
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