IN THE CASE OF:  	  

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20140014693 


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 (GD) to an honorable discharge (HD).

2.  The applicant states that he was told he would receive an HD; however, when he applied for benefits he found out that he was given a GD.

3.  The applicant does not provide any 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.  On 16 October 1984, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The highest grade he attained was private first class/E-3.

3.  He was counseled regarding his unacceptable duty performance on             15 August 1986 and 23 September 1986.

4.  He received nonjudicial punishment under the provisions of Article 15,  Uniform Code of Military Justice (UCMJ), on the following occasions:
 
* 13 November 1985 for striking an unknown person
* 10 June 1986 for assaulting a noncommissioned officer
* 8 July 1986 for assaulting another Soldier

5.  On 21 September 1986, his commander informed him that he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2.  His commander stated the reasons for the proposed action were:  he had presented himself as a disciplinary problem to the command; he had been counseled on numerous occasions for his lack of discipline and failure to follow instructions; he had been punished under Article 15, UCMJ, on two occasions for assault; and his behavior was intolerable.  His commander informed him of his rights.

6.  On 23 September 1986, he was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.

7.  After consulting with counsel, he elected not to submit statements in his own behalf.  He waived a personal appearance before an administrative separation board.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a GD was issued to him.

8.  On 26 September 1986, an authorized official approved a waiver of the requirement for rehabilitative transfer; approved his discharge under the provisions of Army Regulation 635-200, chapter 13; and directed issuance of a GD Certificate.  On 24 October 1986, he was discharged accordingly.

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

	a.  Chapter 13 of this regulation 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.

	b.  Paragraph 3-7a provides that an HD 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 argument that he was told that he would receive an HD has been considered.  However, there is no evidence nor does he provide any that indicates he was told he would receive an HD.

2.  He received NJP on three occasions for assault and he was counseled regarding his unacceptable performance.  His commander was justified in determining that his performance was unsatisfactory and warranted discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

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)                                         AR20140014693





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ABCMR Record of Proceedings (cont)                                         AR20140014693



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