IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130004778 


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 an honorable discharge.

2.  The applicant states that he was a good Soldier and he served his country proudly.  He was told his discharge would be upgraded 6 months after he was discharged; however, this did not occur.  He adds that, as it stands, his discharge will hinder him in obtaining veterans' benefits.

3.  The applicant provides no additional documentary evidence in support of his application.

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 3 March 1981 for a period of
3 years.  He was awarded military occupational specialty 16C (Hercules Fire Control Crewmember).  He served overseas in Germany from 2 July 1981 to 
11 December 1982 and he was assigned to Fort Bliss, TX on 14 January 1983.

3.  A review of the applicant's military records shows he received counseling on 10 occasions during the period 10 May to 8 September 1983.

4.  The applicant accepted nonjudicial punishment (NJP) on four occasions for:

* failing to go at the time prescribed to his appointed place of duty on 
1 March 1983
* being disorderly by fighting with two female Soldiers on 17 June 1983
* failing to go at the time prescribed to his appointed place of duty on
19 July 1983 and being absent without leave (AWOL) on 20 July 1983
* being AWOL from 4 August to 11 August 1983

5.  On 15 September 1983, the applicant's commander notified him that he was initiating action to discharge him for unsatisfactory performance based on poor duty performance, inability to adapt to the military way of life, and a lack of self-discipline.  The applicant was advised of his rights and the separation procedures involved.  He was also advised that the least favorable characterization of service or description of separation he may receive as a result of the separation action was a general discharge.

6.  The applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He was advised of the effect a general discharge under honorable conditions would have on him in civilian life.

   b.  He acknowledged he understood that if he received a discharge which was less than honorable, he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, the act of consideration by either board did not automatically imply that his discharge would be upgraded.

   c.  He indicated that he would not submit statements in his own behalf.
   
   d.  The applicant and consulting counsel each placed their signature on the document.

7.  The company commander recommended approval of the applicant's separation action.

8.  The separation authority approved the recommendation for discharge of the applicant, directed that he be discharged for unsatisfactory performance, and that he be issued a General Discharge Certificate.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 October 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  His service was characterized as under honorable conditions.

   a.  He completed 2 years, 7 months, and 1 day of net active service this period.

   b.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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

   a.  Chapter 13, in effect at the time, 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.

	b.  Chapter 3, 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 contends his general discharge should be upgraded to an honorable discharge because he was a good Soldier and he was told that his discharge would be upgraded 6 months after he was discharged.

2.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the reasons for and the type of discharge directed were appropriate and equitable.

3.  The applicant's contentions were carefully considered.

   a.  The evidence of record shows he completed his overseas tour of duty in Germany in December 1982.  However, after being assigned to Fort Bliss in January 1983, he was counseled numerous times and he received NJP on four occasions.   As a result, he was discharged for unsatisfactory performance on 
11 October 1983.  Thus, the evidence of record refutes the applicant's contention that he was a good Soldier during the period of service under review.

   b.  Records show the applicant acknowledged he was advised of the effect a general discharge under honorable conditions discharge would have on him in civilian life and he acknowledged that he could apply to the ADRB or the ABCMR for upgrade.  The evidence of record also shows that he acknowledged that the act of consideration by either board did not automatically imply (emphasis added) that his discharge would be upgraded.  Aside from the applicant's contention, there is no evidence that he was advised his discharge would be automatically upgraded (emphasis added) after 6 months.  Thus, the applicant's contention is not supported by the evidence of record.

4.  In view of all of the foregoing, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Therefore, there is no basis for granting the requested relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20130004778



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ABCMR Record of Proceedings (cont)                                         AR20130004778



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