IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007105 


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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was told his discharge would be upgraded within 6 months of his separation.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 29 October 1982.  He completed basic training and on 17 January 1983 he was assigned for advanced individual training to the 3rd Training Battalion, Fort Gordon, GA.  Between 8 March and 17 August 1983, he was counseled on numerous occasions for various infractions to include failing to report to his appointed place of duty on several occasions, repeatedly failing examinations, falling out of physical training, and displaying a negative attitude.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows on:

* 2 August 1983, for failing to report to his appointed place of duty
* 23 August 1983, for failing to report to his appointed place of duty

4.  On 29 August 1983, he underwent a mental status evaluation.  The examining physician found his behavior was normal, he was fully alert and oriented, his mood was unremarkable, and his thinking process was clear and thinking content normal.  He stated he met retention standards under the provisions of Army Regulation 40-501 (Standard of Medical Fitness), chapter 3.  He cleared him for any administrative action deemed appropriate by his command.

5.  On 6 September 1983, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsatisfactory performance and was recommending he receive a general, under honorable conditions discharge.

6.  The applicant acknowledged receipt of the proposed discharge action.  On 7 September 1983, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and was advised of the procedures and rights available to him.

7.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge.  He further acknowledged he understood that if he received a less than honorable discharge, he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge; however, he realized an act of consideration by either board did not imply that his discharge would be upgraded (emphasis added).  He declined to submit a statement in his own behalf.

8.  His senior commander subsequently recommended approval of the separation action and stated he (the applicant) could not adapt to the military and function as a Soldier.

9.  On 28 September 1983, the separation authority approved his discharge for unsatisfactory performance and directed the issuance of a General Discharge Certificate.  On 5 October 1983, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an under honorable conditions characterization of service.  He completed 11 months and 7 days of net active service.

11.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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 confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous adverse counseling he received and the NJP he received on two separate occasions for failing to report to his appointed place of duty occasions.  Accordingly, his immediate commander initiated separation action against him.

2.  His 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 reason for separation were therefore appropriate considering all the facts of the case. 

3.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges.  In addition, the evidence of record confirms he was advised that he could request an upgrade to his discharge but it did not mean that it would be upgraded. 

4.  Based on his overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20140007105





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ABCMR Record of Proceedings (cont)                                         AR20140007105



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