IN THE CASE OF:	  

		BOARD DATE:  13 March 2014

		DOCKET NUMBER:  AR20130013361 


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).

2.  He states he had requested an expeditious discharge under provisions of the Uniform Code of Military Justice (UCMJ) because of personality conflicts with his chain of command.  They did not want to let him go and reduced him to pay grade E-3 after he refused promotion to pay grade E-6.  A review of his records will show he never had any disciplinary problems prior to being assigned to K Troop, 3rd Battalion, 3rd Armored Cavalry Regiment (ACR).

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.  On 7 September 1976, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist) (later converted to MOS 19D (Cavalry Scout)).  He continued his service through an extension and a reenlistment.  He was promoted to sergeant/E-5 effective 27 May 1979.

3.  From January 1977 to December 1981, the applicant completed two tours of duty in Korea and one tour of duty at Fort Bliss, TX.  His record is void of documentation showing discipline or performance problems during this period.  

4.  Effective 29 December 1981, he was assigned to Headquarters and Headquarters Troop, 3rd ACR, Fort Bliss, TX.  Effective 20 April 1982, he was assigned to K Troop, 3rd Squadron, 3rd ACR, Fort Bliss, TX.  

5.  A DA Form 2166-6 (Enlisted Evaluation Report) for the period January through December 1982 shows the applicant's rater evaluated him as being "an ineffective leader with no ambition."  

	a.  His rater stated the applicant consistently demonstrated a lack of initiative and an apathetic attitude by his derogatory comments directed toward his job and military life in general.  He had been counseled by the chain of command with negative results.  The rater recommended the applicant be reclassified into a support MOS.

	b.  The indorser stated the applicant had no desire to effectively serve the Army, frequently relayed comments concerning his dislike of the Army to subordinates and leadership, seemed to respond poorly under pressure due to lack of interest, commanded little or no respect from his subordinates, was not loyal to the unit, and had questionable integrity.  

	c.  Both the rater and indorser stated the applicant should not be promoted.

6.  On 27 May 1983, his squadron commander imposed nonjudicial punishment (NJP) against him under the provisions of Article 15, UCMJ, for willfully disobeying a lawful command from a superior commissioned officer.  The commander imposed punishment consisting of reduction to specialist four/E-4, forfeiture of $444.00 a month for a period of 2 months, extra duty for 45 days, and restriction to the troop area for a period of 45 days.  With the exception of extra duty, the punishment was suspended until 10 July 1983.  The applicant appealed the punishment; however, the record does not show the action taken on his appeal.

7.  On 10 June 1983, the applicant submitted a statement in response to a recommendation that he receive a bar to reenlistment.  He stated, in effect, that statements regarding his performance and charges made against him were misleading.  He indicated he believed he was the subject of discrimination because he was the only white noncommissioned officer (NCO) in his platoon, he criticized various aspects of unit operations, and he alleged that his platoon leader had shown favoritism to some Soldiers.  He also noted that the NJP mentioned in the request for a bar to reenlistment was under appeal.

8.  On 29 June 1983, the successor in command to the commander who imposed NJP vacated the suspended portions of the punishment imposed on 27 May 1983.  The basis for the vacation of the suspension was the applicant's disorderly conduct in El Paso, TX, on 3 June 1983.  

9.  On 8 July 1983, his squadron commander approved a bar to reenlistment against the applicant.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows the basis for the bar to reenlistment was the applicant's NJP, two instances of failure to repair, a letter of reprimand, a statement regarding his field performance, and counseling by the command sergeant major.  The applicant's troop commander stated the applicant had continually demonstrated his inability to conduct himself as an NCO and did not deserve the privilege of continued active service.

10.  On 8 November 1983, his squadron commander imposed NJP against him for losing a protective mask of a value of about $234.00.  The commander imposed punishment consisting of reduction to private first class/E-3.  The applicant appealed the punishment and his appeal was denied.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) documenting the punishment shows he was assigned to L Troop, 3d Squadron, 3rd ACR, at the time.  

11.  On 4 January 1984, he acknowledged counseling given to him by his troop commander regarding his poor duty performance, lack of self discipline, and his inability to adapt to the military way of life.  His commander informed him that if his duty performance and attitude did not change, the commander would recommend his elimination from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, and that he could receive a GD.  

12.  On 11 January 1984, the applicant's troop commander notified him he had recommended his separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He stated the reasons for the recommendation were the applicant's poor duty performance, lack of self discipline, and inability to adjust to military life.  He informed the applicant that the least favorable characterization of service he could receive was general under honorable conditions, and he advised the applicant of his rights.

13.  On 11 January 1984, he consulted with counsel who advised him of the basis for his proposed separation and its effects, the rights available to him, and the effect of a waiver of his rights.

14.  After consulting with counsel, he waived consideration of his case by a board of officers and personal appearance before such a board.  He elected not to submit statements in his behalf, and he did not request counsel.  

15.  On 12 January 1984, his troop commander recommended his separation for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He stated the applicant had been assigned to L Troop, 3rd Squadron, 3rd ACR, in July 1983 following his reduction from pay grade E-5 as a result of field-grade NJP and that the applicant had received field-grade NJP a second time that resulted in his reduction to pay grade E-3.  He stated the applicant was a substandard Soldier who had no potential or worth to the Army, and he should therefore be discharged as soon as possible.  He stated the applicant had failed to respond to counseling and NJP and continued to function and perform in a substandard manner.  He requested a waiver of the requirement for further rehabilitation and a rehabilitative transfer.

16.  On 16 January 1984, following a review that found the elimination action to be administratively correct, the separation authority approved a waiver of the requirement for rehabilitative transfer; approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13; and directed issuance of a GD Certificate.

17.  On 24 January 1984, the applicant was discharged in accordance with the separation authority's decision.

18.  His record is void of documentation showing he was selected for promotion to pay grade E-6 or that he refused such a promotion.

19.  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 evidence of record does not support the applicant's request for an upgrade of his GD to an HD. 

2.  The record shows he was advised by counsel of the basis for his separation and its effects, the rights available to him, and the effect of a waiver of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  The record supports his statement that he had no disciplinary problems prior to his assignment to K Troop, 3rd Squadron, 3rd ACR.  However, his prior good record does not excuse his unsatisfactory performance in that assignment.  The record shows he was later assigned to L Troop, 3rd Squadron, 3rd ACR, where he continued to perform in an unsatisfactory manner.  He failed to respond to counseling regarding his performance and he received NJP twice.  The evidence fully supports his chain of command's determination that his performance was unsatisfactory and warranted his discharge.  

4.  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)                                         AR20130013361





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ABCMR Record of Proceedings (cont)                                         AR20130013361



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