IN THE CASE OF: 

		BOARD DATE:	    15 April 2014

		DOCKET NUMBER:  AR20130013873 


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 under honorable conditions to honorable.

2.  The applicant states he has been trying to upgrade the service characterization shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty), but he was told the Army was unable to find any record of his service.

3.  The applicant provides no additional evidence.

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 18 November 1987 and held military occupational specialty 11B (Infantryman).  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.

3.  His records contain 25 DA Forms 4856 (General Counseling Form) ranging in date from 30 March 1988 to 9 March 1989 which show he was counseled for:

* Demonstrating poor duty performance on numerous occasions
* lacking motivation on numerous occasions
* having a bad attitude on numerous occasions
* failing to conduct personal hygiene
* failing to adjust
* talking back to noncommissioned officers (NCO's)
* lacking ability to get along with his peers
* disobeying an order from an NCO/commissioned officer on several occasions
* providing negative (disrespectful) feedback
* not showing up for formation/failing to report at all or on time on numerous occasions
* constantly complaining
* lacking self discipline
* lacking a sense of responsibility
* creating a disruptive influence within the unit
* failing to maintain control of his guests in the barracks
* breaking the restriction imposed by nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
* failing to report to a company muster during an alert
* receiving a letter of reprimand
* being arrested for driving under the influence (DUI) of alcohol
* being recommended for separation, administrative action, and NJP under the provisions of Article 15 of the UCMJ on numerous occasions

4.  He accepted NJP under the provisions of Article 15 of the UCMJ in January 1989 for failing to be at his appointed place of duty and in April 1989 for disobeying the order of a commissioned officer by bringing females into the barracks, breaking restriction, entering an off-limits area, being arrested for DUI of alcohol, and three instances of failing to report.

5.  His records contain a letter of reprimand, dated 3 March 1989, which stated his conduct on 25 February 1998 was totally unacceptable.  He entered a restricted area known for its crime and "crack houses" even though he had previously been briefed not to enter this area.

6.  On 19 May 1989, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance and informed him of his rights.  On this same day, the applicant acknowledged receipt of the notification.

7.  On 19 May 1989, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general discharge under honorable conditions, and the rights available to him.

8.  On 30 May 1989, the separation authority waived rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed the issuance of a general discharge under honorable conditions.  On 12 June 1989, the applicant was discharged accordingly.

9.  His DD Form 214 confirms he was discharged under honorable conditions (general) for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  This form further shows he completed 1 year, 6 months, and 25 days of net active service during this period.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13 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.

12.  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.  The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his discharge is commensurate with his overall record of military service.

2.  The evidence of record shows the applicant's duty performance was tarnished by two instances of NJP, an arrest for DUI of alcohol, a letter of reprimand, and an extensive history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing, there is no 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 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)                                         AR20130013873



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ABCMR Record of Proceedings (cont)                                         AR20130013873



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