IN THE CASE OF:	  

		BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20150001199


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 under honorable conditions (general) discharge.

2.  The applicant states he was told that upon his expiration term of service (ETS), he could have his discharge upgraded to honorable.  However, the people at the Department of Veterans Affairs (VA) office in Dallas, Texas gave him the run-around, saying he couldn't get his discharge upgraded.

3.  The applicant provides a copy of his 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 4 October 1984.  He entered active duty, completed his initial entry training, and was awarded military occupational specialty 76Y (Unit Supply Specialist).  After completing his initial entry training, he was assigned to Company B, 1st Battalion, 58th Infantry Regiment, 197th Infantry Brigade (Separate), at Fort Benning, Georgia.

3.  He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 23 July 1985, for failing to go at the time prescribed to his appointed place of duty on or about 22 July 1985.  

4.  His record shows he was formally counseled by members of his chain of command on numerous occasions between 1 July 1985 and 28 February 1986, for a myriad of performance and conduct-related matters primarily related to, but not limited to, his failure to report or failure to repair.  Several counseling statements suggest his chain of command barred him from reenlistment; however, an approved Bar to Reenlistment Certificate or allied documents are not available for review in this case.

5.  The applicant's immediate commander notified him on 24 March 1986 of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The reason for his proposed action was the applicant's unsatisfactory performance that consisted of his poor duty performance, bad attitude, negative counseling, and multiple instances of failure to report/repair.

6.  The applicant acknowledged receipt of the proposed separation action on 24 March 1986.  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  In addition, his acknowledgement statement stated, "I may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, I realize that an act of consideration by either board does not imply that my discharge will be upgraded."

7.  His immediate commander initiated separation action against him on            28 March 1986, under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  

8.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, and directed his service be characterized as under honorable conditions.  

9.  The applicant was discharged from the Army on 14 April 1986.  His DD Form 214 confirms he was discharged for unsatisfactory performance in accordance with Army Regulation 635-200, chapter 13, with a character of service as under honorable conditions (general).  

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

12.  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 upgrade of his general discharge to an honorable discharge was carefully considered.  Upon notification of his commander’s intent to separate him for unsatisfactory performance, he was advised that he could apply to have his discharge upgraded.  However, there is no policy that allows for an automatic upgrade. 

2.  His duty performance was deemed substandard based on the instance of NJP and a considerable period of negative counseling.  Accordingly, his chain of command initiated separation action against him.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his discharge is commensurate with his overall record of military service.

4.  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, there is an insufficient evidentiary basis to grant him the requested relief.

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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20150001199



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