BOARD DATE:  5 May 2015

		DOCKET NUMBER:  AR20140016610 


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 believes the discharge was unjust because he never received any administrative or disciplinary action.  President Reagan cut the military budget so the services were downsizing.  It was recently brought to his attention he could have his discharge upgraded.

3.  The applicant did not provide any supporting documentation.

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 22 October 1986.  He held military occupational specialty 19C (M40/M60 Armor Crewman).
3.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ on –

* 11 May 1987 for the wrongful use of cocaine between 2 March and 2 April 1987
* 8 April 1988 for being derelict in the performance of his duties
* 16 August 1988 for failing to go to his appointed place of duty

4.  On 5 October 1988, the applicant was informed by letter that his company commander was initiating elimination processing under the provisions of Army Regulation 632-200 (Personnel Separations – Enlisted Personnel), chapter 13 because of his apathetic attitude towards the Army and his failure to achieve Army standards.  The company commander recommended a general discharge. He also advised him of his rights to consult with counsel, submit statements on his own behalf, or waive his rights in writing.

5.  On 6 October 1988, the applicant acknowledged receipt of the notification of elimination action and indicated he understood his rights to counsel.  He also acknowledged he could receive an Honorable or General Discharge Certificate. 

6.  On 12 October 1988, the applicant consulted with counsel and was advised of the contemplated separation action under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He waived his rights and elected to not submit a statement in his own behalf.  The applicant and a Judge Advocate authenticated this acknowledgement form. 

7.  The company commander recommended the applicant's separation due to unsatisfactory performance.  The commander cited the applicant's receipt of three NJP's, a letter of reprimand, a bar to reenlistment and numerous counseling statements for unsatisfactory duty performance.  He further stated the applicant had an apathetic attitude and an unwillingness to abide by rules and regulations.

8.  The appropriate authority approved the separation and directed issuance of a General Discharge Certificate.  On 25 October 1988, the applicant was discharged under honorable conditions for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He had completed 2 years and 4 days of creditable active duty service.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statutory limitation.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 13 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards of conduct expected of Soldiers.  He received three NJP's, a letter of reprimand, a bar to reenlistment, and numerous counseling statements for unsatisfactory performance.

2.  The applicant's administrative separation was accomplished in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  Based on his record of unsatisfactory performance, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  He has not shown an error, injustice, or inequity for the relief he requests.  In view of the foregoing, there is no basis for granting him 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 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)                                         AR20110002275



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ABCMR Record of Proceedings (cont)                                         AR20140016610



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