IN THE CASE OF:	  

		BOARD DATE:  24 September 2013

		DOCKET NUMBER:  AR20130002931 


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, in effect, an upgrade of his under honorable conditions (general) discharge. 

2.  The applicant states his grandmother died and he requested leave to attend her funeral but by the time a decision was made, she was already buried.  He was very hurt and disappointed because he was unable to arrive before the burial.  He was very close to his grandmother.  When he returned to his unit, he was very bitter and his attitude towards the military changed.  This affected his performance.  He went to his captain and explained the situation.  His captain gave him some paperwork to fill out and he did so.  He later found out he would be discharged with a general discharge.  After he got out of the service, he felt that a general discharge would not hurt him from getting a good job.  He has been successful and he continues trying to do better in life.  He recently applied for specific job but the character of his service disqualified him.  

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 24 January 1984 and he held military occupational specialty 05C (Radio Teletype Operator). He served in Germany from August 1984 to September 1985.  He was awarded or authorized the Army Service Ribbon.

3.  He was frequently counseled by members of his chain of command for various infractions including: 

* multiple instances of failing to obey orders
* missing from clean up details at the motor pool
* not being at his appointed place of duty
* being late to formation
* multiple instances of failing to report to duty

4.  On 30 July 1985, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his company commander. 

5.  On 27 August 1985, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) by reason of unsatisfactory performance due to his inability to perform effectively and his lack of potential for advancement and leadership.  The immediate commander recommended issuance of a general discharge.

6.  On 28 August 1985, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He declined to make a statement on his own behalf and further acknowledged that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.


7.  Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.  

8.  The separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 23 September 1985.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 23 September 1985 in accordance with chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general) and he completed a total of 1 year and 8 months of creditable military service.

10.  On 13 May 1987, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge. 

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, in pertinent part, 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.  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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his NJP and multiple instances of negative counseling.  It appears he displayed an inability to perform effectively and lacked potential for advancement and leadership.  He could not conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  

2.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.   Based on his failure to meet Army standards, 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 upgraded 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 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)                                         AR20130002931





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ABCMR Record of Proceedings (cont)                                         AR20130002931



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