BOARD DATE: 5 March 2014
DOCKET NUMBER: AR20130011475
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 he served all but two months of his 3-year enlistment commitment and his record of service will show he served honorably.
3. The applicant provides no 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 24 January 1980 for a period of 3 years. He completed training and was awarded military occupational specialty 76Y (Unit Supply Specialist).
3. He was promoted to specialist four (SP4)/pay grade E-4 on 19 November 1981 and he served overseas in Korea from 31 December 1981 through
23 November 1982.
4. On 5 August 1982, the applicant's commanding officer issued a letter of reprimand to him for wrongfully having in his possession a habit forming narcotic drug (marijuana).
5. The applicant accepted nonjudicial punishment (NJP) on four occasions for:
* being drunk and disorderly and unlawfully striking a Soldier in the face on 1 March 1981
* assaulting a person in the execution of Military Police (MP) duties and resisting being lawfully apprehended on 28 May 1982
* being disrespectful in language toward a superior noncommissioned officer and failing to obey a lawful general regulation on 19 August 1982
* assaulting a Soldier by striking him in the face and resisting being lawfully apprehended by person in the execution of MP duties on 20 October 1982
6. On 22 October 1982, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance as demonstrated by the applicant's inability to adapt to the military lifestyle. He also informed the applicant that his immaturity and inability to adapt was degrading the efficiency and readiness of the unit.
a. He indicated that he was recommending that the applicant's service be characterized as under honorable conditions.
b. The applicant was advised of his rights and the separation procedures involved.
7. The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, and the rights available to him.
a. He indicated that he would not submit statements in his own behalf.
b. He acknowledged that military legal counsel for consultation was available to assist him.
c. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.
d. The applicant and his counsel placed their signatures on the document.
8. The immediate and intermediate commanders recommended approval of the applicant's separation action.
9. The separation authority approved the recommendation for discharge of the applicant and that he be issued a General Discharge Certificate.
10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 November 1982 in the rank of private (E-1) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions. He had completed 2 years, 10 months, and 1 day of net active service this period. He was authorized the Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.
11. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 13, in effect at that time, provided that a member may be separated when it was determined that he or she was unqualified for further military service because of unsatisfactory performance. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions as warranted by their military record.
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 served all but two months of his 3-year enlistment commitment and his record of service will show he served honorably.
2. The evidence of record shows that the applicant received NJP on four occasions and a letter of reprimand. In addition, he was reduced in rank from SP4 (E-4) to PVT (E-1) during the period of service under review. His record contains no evidence of an individual award or decoration. Thus, the applicant's contention that his record of service will show he served honorably is not supported by the evidence of record.
3. 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. Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable.
4. The evidence of record shows that the applicant had a consistent record of indiscipline during his active duty service. As such, the applicant's 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.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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) AR20130011475
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