IN THE CASE OF:	 

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150001582 


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:

	a.  he was just 18 years old and right out of high school when he volunteered to join the Army and serve his country;

	b.  he wanted to make his Army service a career but his commander had different plans;

	c.  he was assigned to the mess hall at Fort Meade where he tried to get the hang of cooking but could not do so, for so many people;

	d.  he sought a transfer and/or reclassification to the infantry branch as a grunt, but his commander refused his request and instead discharged him from the Army under the provisions of chapter 13 of Army Regulation 632-200 (Enlisted Personnel – Administrative Separations), 19 to 20 days prior to his expiration term of service (ETS);

	e.  he recently learned he was not eligible for medical benefits when he applied to the Department of Veterans Affairs (VA) after he became disabled; and

	f.  he is in desperate need of help and thankful for any help given.
3.  The applicant provides a self-authored statement and extracts of multiple official military personnel file (OMPF) documents.

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 (RA) on 21 July 1981.  Upon completion of his initial entry training, he was awarded military occupational specialty “94B” (Cook) and assigned to Fort Meade, Maryland.

3.  His record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 14 September 1981, for stealing another’s checkbook on 15 August 1981
* 2 May 1983, for failing to go at the time prescribed to his appointed place of duty on 25 April 1983
* 18 May 1983, for assault upon a civilian by striking him in the face with his closed fist and striking him upon his head with a metal flashlight with a means likely to produce grievous bodily harm

4.  On 23 June 1983, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was level
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

6.  On 12 May 1983, the unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance with a GD.  The unit commander cited the applicant's apathy evidenced by his failure to go at the time prescribed to his appointed place of duty and his frequent commissions of petty offenses as the basis for his separation action.

7.  The unit commander further notified the applicant of his rights to:

* representation at any hearing by a duly appointed legally qualified military counsel of his choice if reasonably available or civilian counsel retained at his own expense
* submit a statement on his own behalf
* waive his rights

8.  The unit commander advised the applicant that failure to invoke any of his rights would not affect the validity of the elimination proceedings.  On 27 May 1983, the applicant acknowledged receipt of the elimination action.

9.  The applicant’s military record does not include his election of rights or any evidence showing he consulted with legal counsel.

10.  On 28 June 1983, the separation authority approved the applicant's separation action, waived further rehabilitation requirements, and directed the applicant receive a GD Certificate.

11.  Accordingly, on 1 July 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13 with a GD.  He completed 1 year, 11 months, and 11 days of creditable active service.  The DD Form 214 he was issued at the time shows he was discharged by reason of unsatisfactory performance. 

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

13.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13 provided 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 would be characterized as honorable or under honorable conditions.

14.  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 evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  While the available evidence does not show the applicant consulted with counsel, he acknowledged that he was notified of his right to military counsel or civilian counsel at his own expense.  He was advised of the basis for the contemplated separation action and of the rights available to him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Further, the applicant's record includes three NJP actions for offenses of theft, failure to report to duty at the appointed time, and grievous assault.  Clearly, the applicant's misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.  His service did not support the issuance of an HD by the separation authority at the time of discharge and it does not support an upgrade now.

3.  In view of the forgoing, there is an insufficient evidentiary basis for granting the applicant’s 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)                                         AR20150001582



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ABCMR Record of Proceedings (cont)                                         AR20150001582



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