IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140008964 


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 discharge be upgraded to honorable and the reason for his discharge be changed.

2.  The applicant states he was a good Soldier, but he wasn't perfect.  He passed every test the military gave him.  He was physically fit, mentally sound, shot well with a rifle, passed most all inspections, and successfully completed the Primary Leadership Development Course. 

3.  He states with less than 3 weeks before his expiration of term of service (ETS) he was written up by a sergeant (SGT) with whom he and others had been drinking.  The SGT gave him an order to do something and he refused.  He had been drinking and thought he was kidding.  The SGT got him discharged a week before his ETS date.  He was young and was just ready to go home.

4.  The applicant provides no additional evidence in support of his application. 

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 23 November 1982, he enlisted, in the Regular Army, at the age of 19 for 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).  On 17 March 1983, he was assigned to Company D, 5th Engineer Battalion at Fort Leonard Wood, MO.

3.  On 7 May 1985, he received a general officer letter of reprimand for operating a motor vehicle on Fort Leonard Wood with a blood alcohol content of .11% (amount in excess of .10%).  His unit commander and intermediate commanders recommended the letter of reprimand be placed in his Military Personnel Records Jacket (MPRJ) and his official military personnel file (OMPF).  On 10 July 1985, the imposing authority determined that the letter of reprimand would be permanently filed in his OMPF.  A copy of the letter was to be placed in his MPRJ for 3 years or until reassignment to another general court-martial jurisdiction, whichever was sooner.

4.  On 20 August 1985, he accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.

5.  On 8 October 1985, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 
40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

6.  On 9 October 1985, his commander notified him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.

7.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* present his case to an administrative board if he would have 6 or more years of total active and reserve military service at the time of separation
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

8.  On 9 October 1985, the commander recommended he be separated from the service due to unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  Specific reasons for recommending him for separation included his past history of non-payment of just debts, being missing from his appointed place of duty, driving while intoxicated, and numerous other infractions.  His presence in the company had an adverse impact on military discipline and his past duty performance displayed that he would very likely be a disruptive influence in future assignments.  The applicant, despite rehabilitative attempts, continued to require strict supervision and his leadership potential was very minimal.  The commander requested further efforts to rehabilitate the applicant be waived and that he be discharged as soon as possible.

9.  On 11 October 1985, the applicant acknowledged he had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

10.  The applicant requested:

* consideration of his case by an administrative board
* personal appearance before an administrative separation board
* to submit a statement in his own behalf
* consulting counsel

11.  The applicant further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded

12.  In an undated endorsement to the applicant's acknowledgement, dated 
11 October 1985, his intermediate commander stated the applicant had elected to submit a statement; however, he had failed to submit a statement within what was considered a reasonable time period.  The commander recommended the applicant be discharged from the service.  The applicant no longer had the potential to become a productive Soldier and had demonstrated an unwillingness to conform to Army standards.

13.  On 25 October 1985, the appropriate authority approved his discharge with a General Discharge Certificate and directed he not be transferred to the Individual Ready Reserve.

14.  On 8 November 1985, he was discharged due to unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He completed 2 years, 11 months, and 16 days of active service that was characterized as under honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had no prior active service and he had 
2 months and 22 days of prior inactive service.

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

16.  Army Regulation 635-200 sets forth the requirements and procedures for 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
* 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 
	was 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.  He contends an incident with a SGT occurred 3 weeks before his ETS and the SGT got him discharged a week before his ETS.  However, he has not provided any substantive evidence to corroborate his contention.  He contends he was young and he was just ready to go home.  He was 19 years old when he enlisted and 22 years old when he was discharged.  Therefore, his age is not considered a mitigating factor warranting a change in his properly-issued discharge.

2.  His commander processed him for discharge based on not just one incident with his SGT but on his history of non-payment of just debts, his general officer letter of reprimand for driving while intoxicated, and his requiring strict supervision.  This showed his performance to be unsatisfactory.  Therefore, the reason for his discharge was justified.

3.  Based on his unsatisfactory performance, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  He was advised and he acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.

5.  Although he had requested an administrative board and a personal appearance before such board, he did not have at least 6 years of total service active and reserve military service at the time of his separation.  Therefore, he was not entitled to an administrative board.

6.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

7.  In view of the above, there is no basis on which to change the reason for his discharge or to upgrade his discharge to honorable.  

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)                                         AR20140008964



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008964



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1