IN THE CASE OF:	 

		BOARD DATE:	30 May 2013

		DOCKET NUMBER:  AR20120019954 


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 fully honorable.

2.  The applicant states he was young at the time and his girlfriend was pregnant.  He had 3 months left to serve in the Army when his girlfriend died and lost the baby.  He was depressed and requested to be released from the Army.  He contends he was a good Soldier, but he was unable to function after that.

3.  The applicant provides a copy of 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 16 August 1979 at 18 years of age.  He was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he held was specialist/E-4.  He was assigned to Germany.

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for:

* falling asleep on guard duty on 22 January 1981
* disobeying a lawful order on 7 October 1982
* failing to go to his appointed place of duty on 24 February 1983 and 1 March 1983

4.  On 14 March 1983, the applicant's commander informed him that he was recommending his separation from military service for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.

5.  On the same day, the applicant 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 might expect to encounter substantial prejudice in civilian life in the event a general discharge were issued to him.  He waived his rights in conjunction with this action.  He did not choose to submit a statement in his own behalf.

6.  On 11 April 1983, the appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

7.  On 15 April 1983, he was discharged by reason of unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, with his service characterized as under honorable conditions.  He completed 3 years and 8 months of creditable active service.

8.  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.

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

10.  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 requests an upgrade of his discharge to honorable.

2.  His age at the time of his enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age at the time cannot be used as a reason to change a properly-issued discharge.

3.  His records indicate he accepted nonjudicial punishment three times and there is no evidence to support his contention that he requested to be released from the Army after the death of his girlfriend and her baby.  His conduct warranted an administrative separation from the Army.

4.  Based on the applicant's record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for a fully honorable discharge.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20120019954



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120019954



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1