IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140016805 


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 upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states his first 3 years of service were honorable and the remaining period needs to be upgraded. 

3.  The applicant provides a copy of 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 25 July 1979.  He completed training and was awarded military occupational specialty 31K (Combat Signaler).  He reenlisted on 29 January 1982.

3.  His record shows he was counseled on at least three separate occasions between 17 January 1985 and 25 January 1985 for the following offenses:

* making false statements
* failure to follow orders
* failure to make formation
* failure to follow directions

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for:

* failing to go at the time prescribed to his appointed place of duty on          2 January 1985
* assaulting another Soldier on 5 March 1985
* unlawfully striking another Soldier on 8 March 1985

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 17 April 1985, shows he was barred from reenlisting due to his nonjudicial punishments and unacceptable military bearing in failing to maintain good order and discipline in the Army.  

6.  On 23 April 1985, he was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unsatisfactory performance.  His commander stated the reasons for the proposed action were:  In his judgment he would not develop sufficiently to become a satisfactory Soldier; his retention in the Army would have an adverse impact on military discipline, good order, and morale; it was likely that he would be a disruptive      influence in his current assignment and future assignments; that the circumstances forming the basis for that proceeding would continue or reoccur; and his ability to perform duties effectively in the future, including potential for advancement or leadership was unlikely.  His commander advised him of his rights.  

7.  On 23 April 1985, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights. 

8.  After consulting with counsel, he indicated he would submit statements in his own behalf, and he acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a GD were to be issued to him.  

9.  His statement concerning his discharge is not available for review.
10.  An authorized official approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13.  He stated that the applicant had served under honorable conditions and directed that he be issued a GD Certificate.  

11.  On 21 May 1985, he was discharged under the provisions of Army Regulation 635-200, chapter 13; however, contrary to the authorized official’s decision, his DD Form 214 shows he was given an honorable character of service.  He completed 5 years, 9 months and 27 days of net active service this period.  

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  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
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely

13.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7a states 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 shows that an authorized official approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13 and directed that the applicant be issued a GD Certificate; however, it appears that his characterization of service was erroneously listed as honorable on his DD Form 214. 

2.   Based on the fact that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel, a GD was appropriate; however, while the characterization of service on his DD Form 214 is incorrect, the policy of the ABCMR is not to correct a record in a manner which would make an applicant worse off.  As such no correction of the character of service on his DD Form 214 is appropiate.

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)                                         AR20140016805



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ABCMR Record of Proceedings (cont)                                         AR20140016805



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