IN THE CASE OF:
BOARD DATE: 8 OCTOBER 2015
DOCKET NUMBER: AR20150002569
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, in effect, an upgrade of his general discharge to honorable.
2. The applicant states:
* his motor pool sergeant in Germany would spit in his face every time he said "private"
* he asked the sergeant to please stop spitting in his face
* he got in trouble and was separated with a general discharge
* he served his country, but has no veterans' benefits (presumed to mean Department of Veterans Affairs benefits)
3. The applicant provides no additional evidence.
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 13 March 1986 for a period of 3 years. He completed his training and was awarded military occupational specialty 44B (metal worker).
3. He was counseled for possession of a lock-blade knife and unsatisfactory performance.
4. Between May 1986 and May 1987, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice was imposed against him on four occasions for:
* assaulting a private by striking him with his fist
* failing to go at the time prescribed to his appointed place of duty (four specifications) and disobeying a lawful order
* failing to go at the time prescribed to his appointed place of duty (two specifications)
* leaving his appointed place of duty without authority (two specifications), breaking restriction, and altering a public record
5. On 13 April 1987, a bar to reenlistment was imposed against him.
6. On 2 May 1987, he was notified of his pending separation for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13. His unit commander specified the following reasons for the proposed action:
* he demonstrated poor duty performance as evidenced by his derogatory counseling statements and Article 15s
* he had no respect for authority and no sense of responsibility
* he had not responded to any rehabilitative attempts
7. On 6 May 1987, he consulted with counsel, waived his rights, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. He also elected not to submit a statement in his own behalf.
8. On 12 May 1987, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.
9. On 28 May 1987, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He completed a total of 1 year, 2 months, and 16 days of creditable active service.
10. 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.
REFERENCES:
Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.
a. Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions.
b. 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:
1. The applicant contends he has no veterans' benefits. However, a discharge is not changed for the purpose of qualifying an applicant for VA benefits. Each request is individually considered based on the evidence presented.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.
3. The applicant's record of service included adverse counseling statements, a bar to reenlistment, and four nonjudicial punishments. His quality of service was not sufficiently meritorious to warrant a fully honorable discharge.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont) AR20150002569
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20150002569
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