IN THE CASE OF:	   

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140003723 


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 honorable.

2.  The applicant states:

* he did not deserve a general discharge
* he was not guilty of what he was accused of
* he is innocent
* he deserves the honorable discharge he would have gotten had he not been falsely accused and given a general discharge
* he was told his discharge would be automatically upgraded to honorable after 10 years

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 11 February 1981 for 6 years.  He completed his training and was awarded military occupational specialty 76Y (unit supply specialist).

3.  Between January 1983 and August 1983, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* failing to be at the time prescribed at his appointed place of duty
* dereliction of duty and failing to be at the time prescribed at his appointed place of duty
* disobeying two lawful orders

4.  He was counseled for:

* failing to follow instructions
* having a female in his barracks
* failing to notify his supervisor of his whereabouts
* failing to turn in the Arms Room keys
* failing to be at the time prescribed at his appointed place of duty
* failing to keep his personal appearance up to military standards

5.  On 7 December 1983, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander cited the following:

* he had an established pattern of not being at his appointed place of duty
* despite repeated counseling and NJP, he had continued his unsatisfactory performance
* he had demonstrated a reluctance to conform to military standards of performance or behavior

6.  On 8 December 1983, he acknowledged notification of his pending separation action.  He declined the opportunity to consult with counsel and he waived his rights.  He elected to submit a statement in his own behalf.  In summary, he stated he would rather stay and finish out his tour of service since he only had 65 days until his expiration of term of service.

7.  On 13 December 1983, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

8.  On 23 December 1983, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed a total of 2 years, 10 months, and 13 days of creditable active service.

9.  In February 1987, the Army Discharge Review Board denied his request for an honorable discharge.

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

	a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would 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.

11.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge, or both, was improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he was told his discharge would be automatically upgraded to honorable after 10 years was noted.  However, a discharge upgrade is not automatic.

2.  The applicant contends he was innocent and did not deserve a general discharge.  However, his record of service included adverse counseling statements and three NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  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)                                         AR20140003723



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ABCMR Record of Proceedings (cont)                                         AR20140003723



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