IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130013905 


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 slammed the door at the break room.  This minor incident led to his general discharge.  He believes this is an unjust discharge and it should be upgraded to honorable.

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 (RA), in pay grade E-1, on 27 September 1978, for 3 years.  He held military occupational specialty 76C (equipment records and parts specialist).  He was promoted to pay grade E-4 on 1 November 1980.  He served in Italy from 3 May 1979 through 21 September 1981.  

3.  He reenlisted in the RA on 14 April 1981 for 3 years.  

4.  He received counseling on/for:

* 17 February 1982 – lack of respect for authority and continued detrimental behavior leading to Uniform Code of Military Justice (UCMJ) action
* 30 March 1982 – continual problem of lack of discipline
* 2 April 1982 – insubordination and disrespect
* 15 June 1982 – being late for clean-up detail
* 2 July 1982 – military standards
* 7 July 1982 – off-duty conduct which could have led to his arrest for criminal trespassing
* 17 August 1982 – substandard duty performance, inexcusable conduct off-duty, denial of training, future with the company, and failed rehabilitation attempts

5.  On 18 August 1982, a bar to his reenlistment was approved.

6.  On 15 October 1982, he again received counseling, for elimination under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13, for unsatisfactory performance.

7.  On 1 February 1983, he accepted non-judicial punishment (NJP) under Article 15, UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer (NCO), being disrespectful in language toward his superior NCO, and willfully damaging a door jam in the unit day room.  

8.  On 1 March 1983, he further received counseling for failure to report and repair.

9.  On 4 April 1983, he again accepted NJP under Article 15, UCMJ, for unlawfully striking a Soldier in the face with his fists.  

10.  On 14 April 1983, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance of duty.  He advised the applicant of his rights.

11.  On 18 April 1983, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

12.  On 19 April 1983, the applicant's company and battalion commanders recommended the applicant be discharged under the provisions of Army           Regulation 635-200, paragraph 13-2.

13.  On 22 April 1983, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

14.  The applicant was discharged accordingly on 5 May 1983.  He completed 4 years, 7 months, and 9 days of net active service.

15.  On 2 April 1986, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 13-2 – Commanders would take action to separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale.  The members' service would be characterized as honorable or under honorable conditions as warranted by their military record.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received counseling between February 1982 and March 1983, was barred from reenlistment, and was twice punished under Article 15.  His company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance.  The separation authority approved his discharge and directed the issuance of a general discharge.  He was discharged accordingly on 5 May 1983.
2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20130013905





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ABCMR Record of Proceedings (cont)                                         AR20130013905



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