IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140010027 


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 under honorable conditions.  Additionally, he requests the narrative reason in block 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty), shown as "Unsatisfactory Performance," be removed.

2.  The applicant states, in effect, at the time of his discharge he was simply asked if he wanted to get out of the Army under honorable conditions.  The reference to unsatisfactory performance is not right; he did not get a bad conduct discharge.  He now wishes to go to college and needs educational benefits from the Department of Veterans Affairs (VA).  He only recently realized what his DD Form 214 said.

3.  The applicant provides a DD Form 214.

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 1 August 1979.  After initial training, he was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).  The highest rank/grade held while on active duty was specialist/E-4.

3.  He reenlisted on 18 August 1983.  He was stationed in Germany from on or about 9 January 1981 to on or about 9 August 1984, and his last assignment prior to discharge was at Fort Polk, LA.

4.  During his term of active service, he was awarded or authorized:

* Army Good Conduct Medal “(2nd Award)”
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)

5.  Available records show the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions:

* on 31 May 1984, for two specifications of failing to go at the time prescribed to his appointed place of duty at the time prescribed(failure to repair)
* on 24 June 1984, for one specification of failure to repair and one specification of making a false official statement
* on or about 11 October 1984, for failure to repair

6.  On 3 August 1984, the applicant was convicted by a summary court-martial of one specification of making a false statement and one specification of disobeying a lawful order.

7.  On 18 October 1984, the applicant's commander initiated separation action under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The commander cited the applicant's past performance record as the basis for his action.  

8.  On 23 October 1984, the applicant met with counsel and was advised of the basis for the contemplated separation action.  He did not submit statements in his own behalf.  He stated he understood he could encounter considerable prejudice should he receive either a general discharge under honorable conditions, to include ineligibility for veterans benefits.

9.  In an undated endorsement, the separation authority approved the discharge action and directed the applicant receive a General Discharge Certificate.  On 30 November 1984, the applicant was discharged accordingly.

10.  His DD Form 214 confirms he received a general under honorable conditions discharge.  It shows he was separated under the provisions of chapter 13, Army Regulation 635-200 with a narrative reason of unsatisfactory performance.

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

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance when it is clearly established:

* in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier
* the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale
* it is likely that the Soldier will be a disruptive influence in present and future duty assignments
* it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur
* the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely

	b.   Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

13.  Army Regulation 635-5-1 (Personnel Separations - Separation Program Designators (SPD)), in effect at the time, provides a cross reference table which gives instructions for determining the narrative reason to be displayed on the DD Form 214.  When the authority for the discharge is chapter 13, Army Regulation 635-200, the corresponding narrative reason is unsatisfactory performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his under honorable conditions discharge was carefully considered; however, there was insufficient evidence to support his request.

2.  The evidence of record shows a pattern of unsatisfactory performance throughout his period of service.  The 3 nonjudicial punishments, coupled with his summary court-martial, demonstrate the applicant continually displayed a lack of self-discipline and inability to conform to military rules.  Accordingly, his chain of command initiated separation action against him.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  In regard to his contention the narrative reason of unsatisfactory performance was incorrect, it is clear this was the phrase required by Army regulation.  A change, therefore, would not be appropriate.

4.  His overall record of service shows he displayed an inability to adjust to the regimen of military life.  Based on his overall record, his service does not meet the standards of acceptable conduct and performance for Army personnel.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.





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)                                         AR20140010027





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ABCMR Record of Proceedings (cont)                                         AR20140010027



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