IN THE CASE OF:	   

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012883 


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 characterization of service from general under honorable conditions to fully honorable.

2.  He states, in effect, that he served honorably and graduated from basic training.  He had an Article 15 "reversed," but he never received counsel concerning the reversed Article 15.  He had no other military disciplinary action.  He states that he requested to be transferred numerous times to another unit or to change his military occupational specialty (MOS).  He did not receive any support or back up of any sort during his tenure in advanced individual training.  He is not seeking any type of medical or other compensation; he is only seeking an honorable discharge.

3.  He 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 24 August 1982.  The highest rank/pay grade he attained while serving on active duty was private (PV2)/E-2.

3.  His record reveals he was the recipient of numerous adverse counseling sessions for the following offenses:

* appearing to be sleepy and disinterested in class on a daily basis
* being unprepared for class due to inadequate studying
* failing several exams with very low scores
* needing to participate in additional/remedial training
* poor time management
* sleeping in class
* substandard attitude
* burning a hole in his mattress
* lack of motivation and initiative
* immaturity
* expressing a desire to be discharged
* absenting himself from his place of duty
* failing to report to his appointed place of duty at the time prescribed

4.  His record contains a DA Form 4856 (General Counseling Form), dated 1 December 1982, which shows that he expressed a desire to be discharged from service.  He indicated that he had strong religious convictions and that this was one of his reasons for wanting to be discharged.  His supervisor opined that he was not trying hard enough to make the Army a career.  The applicant was sent to the Community Mental Health Advisor for an assessment and it was noted that he was depressed and an introvert. However, it was concluded that he was considered to be a candidate for discharge.  It was opined that he was not Soldier material, he should not be permitted to stay in school, and he should be discharged from the Army immediately.

5.  His record shows his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for violating Article 86 of the UCMJ by absenting himself from his unit for 24 hours.  He did not demand trial by court-martial and he requested a closed hearing.  He did not request to have anyone speak on his behalf and he chose not to appeal the punishment.

6.  On 22 February 1983, his unit commander notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The unit commander cited the applicant's Article 15 and numerous incidents of failing to report for duty as the reasons for this proposed action.  He also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

7.  On 22 February 1983, he acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action take by him in waiving his rights.  He also elected not to submit a statement in his own behalf. 

8.  On 28 February 1983, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

9.  On 4 March 1983, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed the issuance of a General Discharge Certificate.

10.  On 11 March 1983, he was discharged accordingly.  His DD Form 214 shows in:

* Block 24 (Character of Service) the entry "Under Honorable Conditions (General)"
* Block 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 13"
* Block 28 (Narrative Reason for Separation) the entry "Unsatisfactory performance"

11.  The applicant's record is void of evidence showing he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to fully honorable within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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.

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 applicant's request for an upgrade of his characterization of service to fully honorable was carefully considered and determined to lack merit.

2.  Although he contends that he served honorably and did not have disciplinary problems, the record shows he had multiple disciplinary infractions and was counseled repeatedly.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his characterization of service from general under honorable conditions to fully 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)                                         AR20140012883



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ABCMR Record of Proceedings (cont)                                         AR20140012883



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