IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130011657 


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 that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was an excellent Soldier until he was assigned to Fort Knox, Kentucky and his commander and first sergeant did not see eye to eye with him.  He contends that given the circumstances of his discharge it should be upgraded to a fully honorable discharge. 

3.  The applicant provides a four-page letter explaining 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 4 October 1977 for a period of 3 years and training as an armor crewman.  He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Germany on 11 February 1978.  He was advanced to the pay grade of E-4 on 1 August 1979.

3.  On 30 August 1979 he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 31 August 1979 for a period of 6 years and a selective reenlistment bonus.  He departed Germany on 31 August 1980 for assignment to Fort Knox.

4.  During the period of 20 January to 4 February 1981, nonjudicial punishment (NJP) was imposed against the applicant on three occasions for disobeying lawful commands from superior commissioned and noncommissioned officers and for failure to go to his place of duty.

5.  On 1 June 1981 the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record and his inability to exists in a disciplined environment, repeated failure to go to his place of duty, difficulty in following orders from superiors and his unsuitability and difficulty in adjusting to Army life.  The applicant elected not to submit a statement in his own behalf and the appropriate commander subsequently approved the bar to reenlistment on        15 June 1981. 

6.  During the period of 25 June 1981 to 18 November 1982, NJP was imposed against the applicant on at least six occasions for misappropriating a government vehicle, being absent without leave (AWOL) from 23 November to 3 December 1981and 3 December to 17 December 1981, eleven specifications of failure to go to his place of duty, and two specifications of disobeying lawful orders from superior noncommissioned officers. 

7.  The facts and circumstances surrounding the applicant’s administrative discharge is not present in the available records; however, his records do contain a duly authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was discharged under honorable conditions on 11 February 1983 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 5 years, 3 months and 14 days of active service.

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; unsatisfactory performance;  sexual perversion; drug addiction; an established pattern of shirking; and/or an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

10.  Army Regulation 635-200, 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contentions, supporting documents, and overall record of service have been considered.  However, the repeated nature of his misconduct  is not sufficiently mitigating to warrant an upgrade of his discharge.  His service simply does not rise to the level of a fully honorable discharge.

4.  In the absence of evidence showing that an error or injustice occurred in his case, there appears to be no basis to grant his request.








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)                                         AR20130011657





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ABCMR Record of Proceedings (cont)                                         AR20130011657



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