IN THE CASE OF:
BOARD DATE: 25 July 2013
DOCKET NUMBER: AR20130000429
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 to honorable.
2. The applicant makes no statement on his behalf.
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 enlisted in the Regular Army on 23 November 1979. He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman). The highest rank/grade he attained while serving on active duty was corporal/E-4. However, he held the rank/grade of private/E-1 at the time of discharge.
3. His records show he received counseling for failing to report to his appointed place of duty at the time prescribed on more than one occasion.
4. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:
a. on 17 June 1982, for willfully disobeying a lawful order and using disrespectful language to a superior noncommissioned officer on 19 May 1982 and for wrongfully using provoking words toward a Soldier on 20 May 1982; and
b. on 30 November 1982, for wrongfully possessing some amount of marijuana and for failing to go to his appointed place of duty on 2 October 1982.
5. His record contains an undated DA Form 4126-R (Bar to Reenlistment Certificate) which shows he was barred from reenlistment. The document further states the applicant had been late to work numerous times, had been involved in three reported domestic disturbances which resulted in the loss of his privilege to post housing, and had been involved in acts of moral turpitude.
6. On 20 January 1983, the applicant was notified of the unit commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsatisfactory performance.
7. On 20 January 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him. The applicant elected not to make a statement and he waived his right to consulting counsel.
8. On 23 February 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed his transfer to the Individual Ready Reserve for completion of his military service obligation and his service characterized as under honorable conditions.
9. On 25 February 1983, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 3 days of creditable active military service with no lost time.
10. There is no evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
11. 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. An honorable or general discharge was considered appropriate.
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 available evidence shows his duty performance was tarnished by two instances of nonjudicial punishment, a bar to reenlistment, and a history of negative counseling. Accordingly, his chain of command initiated separation action against him. The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors which would have jeopardized his rights. His general discharge is commensurate with his overall record of military service.
2. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance 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 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) AR20130000429
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