BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130000585 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he admits he had some problems with authority during his military service.  He enlisted at the age of 27.  Prior to his enlistment he had lived on his own for quite some time; therefore, he had some issues adapting to military life.  He found that certain noncommissioned officers (NCO) sometimes abused their rank in their dealings with him.  He brought this to the attention of his troop leader and nothing seemed to be done about the problem.  Therefore, he began getting into trouble for standing up for himself.  This led to his receipt of more than one instance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  Based on his personal experiences, he would not recommend that anyone join the military service after 21 years of age.

3.  The applicant provides 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, and 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 5 March 1986 and he held military occupational specialty 67V (Observation/Scout Helicopter Repairer).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  His record shows he was assigned to C Troop, 3rd Squadron, 7th Cavalry, Germany.

4.  His record contains numerous negative counseling statements during the period 28 January 1987 to 24 July 1987 that shows he was counseled for:

* failing to prepare for a barracks room inspection
* poor maintenance of his barracks room and military equipment
* poor job performance
* poor personal appearance
* falling out of formation during runs/remedial physical training
* military bearing (personal issues/military responsibility)
* removal from job responsibilities
* poor time management/wasting time
* failure/unwillingness to be trained 
* bypassing his chain of command
* blurting his personal thoughts regardless of the situation or appropriateness 
* unprofessionalism/attitude problems
* writing bad checks
* disapproval of promotion to PFC
* failure to adhere to safety procedures while working on aircraft
* disrespecting an NCO/failure to follow the orders of an NCO
* losing control of his temper in public
* dereliction of duty

5.  His record shows he accepted NJP under the provisions of Article 15, UCMJ on:

* on 19 May 1987, for disorderly conduct
* on 6 July 1987, for dereliction of duty in that he failed to remain awake while serving as charge of quarters (CQ)
* on 27 July 1987, for disobeying the orders of an NCO and using disrespectful language toward an NCO

6.  His record contains a Standard Form (SF) 93 (Report of Medical History), SF 88 (Report of Medical Examination), and a DA Form 3822-R (Report of Mental Status Evaluation), dated 4 August 1987, that shows his separation physical indicate he met the medical standards for retention, had no mental illnesses, and had the mental capacity to understand and participate in proceedings.

7.  On 18 August 1987, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 13, for unsatisfactory performance, for repeated NJP, failure to follow instructions, disrespect and disregard of the NCO within his chain of command, and failure to rehabilitate despite numerous counseling.  His commander recommended he receive a general discharge.

8.  On 25 August 1987, the applicant acknowledged receipt of his commander's notification, consulted with legal counsel, was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the rights available to him.

9.  On 31 August 1987, the separation authority approved the applicant's release from active duty under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, and directed he receive a general characterization of service and be transferred to the Individual Ready Reserve (IRR) to complete his remaining service obligation.

10.  His record contains a DA Form 4430–R (Department of the Army Report of Result of Trial), dated 17 September 1987, that shows a summary court-martial convicted him of breaking restriction and disrespect toward an NCO on 
17 September 1987.

11.  On 20 November 1987, the separation authority stated that subsequent to receiving separation orders, the applicant was convicted by a summary court-

martial of breaking restriction and disrespect toward an NCO.  He was sentenced to 30 days consignment.  Based on the summary court-martial conviction, the separation authority concluded the applicant had no potential under the conditions of full mobilization and directed he not be assigned to the IRR.

12.  His DD Form 214 shows he was discharged on 4 January 1988 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He completed 1 year, 9 months, and
8 days of creditable active service with 22 days of time lost.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 of this regulation 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.

	b.  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 was discharged from active duty for repeated NJP, failure to follow instructions, disrespect and disregard of the NCO within his chain of command, and failure to rehabilitate despite numerous counseling.  These are grounds for separation under Army Regulation 635-200, chapter 13, for unsatisfactory performance.

2.  There is no evidence of record and he has not provided any evidence to show his discharge was administratively incorrect or that he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.

3.  His record contains an extensive history of misconduct, such as negative counseling, repeated NJP, and a court-martial.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130000585



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ABCMR Record of Proceedings (cont)                                         AR20130000585



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