BOARD DATE:	  24 September 2013

		DOCKET NUMBER:  AR20130002750 


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 (GD) to an honorable discharge (HD).  (Note:  He indicates he received an under other than honorable conditions discharge; however, his record shows he received a GD.)

2.  He states he is now older and more mature, and he regrets his actions that resulted in the issuance of a GD.  He gave 5 years, 8 months, and 9 days of his life to the military.  He did not plan to be a bad Soldier.  His intent upon entering the military was to serve his country and make his family proud.  Now that he is a grandfather, he would like his children and grandchildren to look back with pride and dignity remembering that he served his country.  He is at a place in his life where he sees things differently, and upgrading his discharge is the first step in making things right.

3.  He provides:

* correspondence he received from the Army Review Boards Agency
* DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter of support
* Certificate of Recognition
* Criminal History Report



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 22 May 1979.  On 29 November 1981, he was discharged for immediate reenlistment, and he reenlisted the next day.  

3.  On 26 April 1983, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty on 7 April 1983.

4.  On 15 November 1984, he received NJP for violating a lawful regulation by wrongfully purchasing controlled items in excess of the established monthly limits.  He appealed the NJP; however, the record does not show the action taken on his appeal.

5.  The record includes counseling statements written by Sergeant P.  These statements show:

* on 21 June 1984, the applicant was counseled for his job performance being lacking, being late for formation, spending time in the "village" without a proper pass, and being disrespectful toward the squad leader and other noncommissioned officers (NCOs)
* on 25 June 1984, the applicant was told to get out of bed three times and he did nothing
* on 29 June 1984, the applicant was disrespectful toward NCOs
* on 5 July 1984, the applicant's wall locker was unsecured, he tried to wake him up for formation and found out he was drunk, he was late for formation
* on 6 July 1984, he failed to make formation 


6.  On 20 December 1984, his company commander counseled him for:

* dereliction of duty by falling asleep while performing duty as a charge of quarters (CQ) runner
* use of improper language and being disrespectful toward a superior commissioned officer

7.  The applicant's commander informed the applicant he intended to:

* process him for elimination in accordance with chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
* impose NJP for the above offenses or prefer court-martial charges

8.  The applicant refused to sign the counseling statement.

9.  On 3 January 1985, he received NJP for being derelict in the performance of his duties by failing to stay awake as a CQ runner and willfully disobeying a lawful command from a superior commissioned officer.

10.  On 17 January 1985, his commander informed the applicant he intended to recommend his elimination from the U.S. Army under the provisions of paragraph 13-2a, Army Regulation 635-200, for unsatisfactory performance.  His commander informed the applicant he could be issued either an Honorable Discharge Certificate or a General Discharge Certificate, and that could expect to encounter substantial prejudice in civilian life if his service were to be characterized as general under honorable conditions.  His commander informed him of the following rights:

* to consult with military or civilian counsel
* to submit statements and document in his own behalf
* to obtain copies of documents that were to be sent to the separation authority in support of the proposed separation
* to waive his rights in writing

11.  On 17 January 1985, the applicant acknowledged he had been notified of the initiation of action to affect his discharge for unsatisfactory performance.  On the same date, he signed a statement indicating he declined counsel.  The record is silent on the matter of whether or not he decided to exercise his other rights.



12.  On 17 January 1985, his commander submitted a recommendation to discharge the applicant for unsatisfactory performance under the provisions of paragraph 13-2a, Army Regulation 635-200.  On the same date, the separation authority approved the recommendation and directed the applicant receive a GD Certificate.

13.  On 30 January 1985, the applicant was discharged in accordance with the separation authority's direction.  He completed 5 years, 8 months, and 9 days of net active service this period.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  He provides a:

	a.  letter of support, dated 8 December 2012, from his pastor who states the applicant has been a good father, has maintained a clean record, has been supportive of the pastor's ministry by providing time and money, and has shown himself to be a leader; 

	b.  Certificate of Recognition acknowledging his 10 years of service to his civilian employer; and

	c.  Criminal History Report showing he was arrested on the following dates:

* 19 November 1994 (aggravated battery)
* 6 January 1996 operating a vehicle while intoxicated and improper lane use
* 5 January 1997 (simple assault, threatening a public official, and failure to appear)
* 26 September 2000 (simple battery and unauthorized entry)
* 23 November 2002 (simple battery)

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge 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 HD 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 does not support the applicant's request for an upgrade of his discharge to an HD.

2.  He received NJP on three occasions, and he was counseled for misconduct on several occasions.  Based on this misconduct, his chain of command was justified in determining that his performance was unsatisfactory and warranted discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His post-service conduct (including his record of five arrests subsequent to his discharge) and achievements are noted.  Generally, post-service conduct and achievements are an insufficient basis for upgrading a properly-issued discharge.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

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)                                         AR20130002750



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ABCMR Record of Proceedings (cont)                                         AR20130002750



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