IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130004952 


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) and a change of the reason for his separation.

2.  He states he wants to receive better Department of Veterans Affairs (VA) medical benefits.

3.  He provides no additional documentation in support of his request.

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.  On 4 June 1987, the applicant enlisted in the U.S. Army Reserve.  He completed initial entry training, and he was awarded military occupational specialty (MOS) 57F (Graves Registration Specialist).  In January 1988, he requested clearance to enlist in the Regular Army (RA).  On 24 May 1988, his request to enlist in the Regular Army was approved and he enlisted in the RA that date.  

3.  Upon enlisting in the RA, he completed training for MOS 19D (Cavalry Scout).  After completing training, he was assigned to a unit in Germany.  

4.  On 11 October 1988, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to have his wall locker and room ready for inspection as ordered by a noncommissioned officer (NCO).  

5.  His record shows he was counseled on his performance and conduct on numerous occasions:

* 14 December 1988 – found asleep during his guard duty shift
* 11 January 1989 – job performance, military appearance, and ability to handle simple tasks below average during December 1988
* 2 March 1989 – performance below average during February 1989
* 7 and 9 March 1989 – disobeying a lawful order
* 17 March 1989 – disobeying a lawful order by failing to obey the direction of two NCOs to bring his bills in to allow the NCOs to assist him with his financial problems
* 18 March 1989 – failure to report for training
* 30 March 1989 – inability to follow instructions and a pattern of irresponsibility

The records of counseling show he was warned repeatedly that his behavior could result in action to eliminate him from the Army.

6.  A memorandum, subject:  Notification of Dishonored Checks, dated 4 April 1989, shows Headquarters, Army and Air Force Exchange Service, Europe, notified him that 23 checks issued and/or cashed by him or his dependent were returned dishonored.  The total amount of the dishonored checks was $1,166.40.  Handwritten entries on the memorandum indicate there were an additional seven dishonored checks and, including those checks, the total amount was $1,423.95.  

7.  On 10 April 1989, he accepted NJP for failing to go at the time prescribed to his appointed place of duty on 17, 18, and 20 March 1989.

8.  On 11 May 1989, his commander informed the applicant he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2.  His commander stated the reason for the proposed action was that, since arriving in the unit, the applicant had been counseled on numerous occasions for minor disciplinary problems, he had been subjected to NJP, and he was unable to pay just debts.  His commander informed him he was recommending that he receive a GD.  His commander informed him of his right to:

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

9.  On 12 May 1989, he was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.  

10.  After consulting with counsel, he elected not to submit statements in his own behalf.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a GD was issued to him.  

11.  On 16 May 1989, the applicant's commander recommended his discharge under to the provisions of Army Regulation 635-200, paragraph 13-2, because of repeated disregard for military authority, numerous counseling sessions, NJP, and failure to pay just debts.  

12.  On 16 May 1989, the separation authority approved his discharge for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and directed he receive a GD Certificate.  On 19 June 1989, he was discharged as directed.  

13.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 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 or a change of the reason for his separation.

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for VA medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  He received NJP twice and he was counseled for misconduct and poor performance on several occasions.  Based on this record of indiscipline, his chain of command was justified in determining that his performance was unsatisfactory and warranted his discharge.  All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and the reason for his discharge was recorded accurately in his record.  There is no evidence of an error in the reason for his discharge.  Therefore, there is no basis for changing the reason for his discharge.

4.  The NJP he received and counseling records clearly show his service 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)                                         AR20130004952





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ABCMR Record of Proceedings (cont)                                         AR20130004952



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