IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130011204 


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, under honorable conditions discharge (GD) to an honorable discharge (HD).  He also requests, in effect, reconsideration of his previous application for correction of his record to show his current name.  

2.  He states he is "100% VA [Department of Veterans Affairs] compensated" and wants to be issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) reflecting his current name as it appears in his VA file.

3.  He provides no documentary evidence 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.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  In ABCMR Docket Number AR2000039495, dated 10 August 2000, the Board denied the applicant's request for correction of his record to show his current name.  His request for reconsideration was not received within 
1 year of the ABCMR's original decision; therefore, the portion of his application pertaining to correction of his record to show his current name will not be discussed further in these Proceedings.  The applicant should note that the ABCMR will not consider any further requests for reconsideration of this matter.  However, he has the option to seek relief in a court of appropriate jurisdiction.

3.  On 18 January 1978, the applicant enlisted in the Regular Army for a period of 3 years.  He continued his service by extension and reenlistment.  

4.  On 23 March 1983, he was reprimanded by his company commander for being indebted to local area businessmen in excess of $3,000.  The reprimand was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).  The applicant acknowledged that he had read and understood the unfavorable information presented against him and elected not to make a statement.  The imposing authority directed that the reprimand be filed in his record for 12 months or until he was assigned to another general court-martial jurisdiction.  

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 23 March 1983, shows the applicant's commander recorded numerous instances of counseling given to the applicant due to indebtedness and numerous instances of contact from creditors regarding the applicant's indebtedness.  The form also shows the applicant had provided a urine sample that tested positive and received counseling as a result of the positive urinalysis test. 

6.  On 24 March 1983, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being derelict in the performance of his duty.

7.  On 15 April 1983, the applicant acknowledged he had been furnished a copy of the DA Form 4126-R and that he had been counseled and advised of the basis for his recommended bar to reenlistment.  He elected not to submit a statement in his own behalf.  On 22 April 1983, the bar to reenlistment was approved.

8.  On 13 May 1983, he received NJP for failing to go at the time prescribed to his appointed place of duty and being derelict in the performance of his duties.  He appealed the punishment and his appeal was denied.

9.  On 27 June 1983, his commander notified the applicant of the initiation of action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  As the basis for the action, his commander listed two instances of NJP, three written counseling statements for unsatisfactory performance, and an established pattern of not redeeming dishonored checks.  His commander advised him of his rights and that his service could be characterized as honorable or under honorable conditions.  

10.  On 28 June 1983, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  

11.  After consulting with counsel, the applicant elected not to submit statements in his own behalf.  He indicated he understood that he could expect to encounter substantial prejudice in civilian life if he received a GD.  

12.  On 29 June 1983, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed that he be issued a GD Certificate.  On 14 July 1983, he was discharged accordingly.

13.  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 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 available evidence does not support the applicant's request for an upgrade of his discharge to an HD.

2.  He received NJP on two occasions, he was counseled on numerous occasions regarding his indebtedness and unsatisfactory performance, and he was reprimanded for his indebtedness.  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.  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)                                         AR20130011204





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ABCMR Record of Proceedings (cont)                                         AR20130011204



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