IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150003813 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. 2. The applicant states, in effect, in 1983 he was told by his superiors that if he completed training in military occupational specialty (MOS) 24L (Improved Hawk Launcher/Mechanical Systems Repairer) and one year of service, he could leave active duty and enter the U.S. Army Reserve (USAR). He did this, but he was never told he would lose his veteran benefits. He adds that he was not the best Soldier, but he trained hard, passed all tests, and was proud to serve. 3. The applicant provides copies of his DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 USAR on 18 September 1981 for a period of 6 years and he further enlisted in the Regular Army (RA) on 1 December 1981 for a period of 4 years for training in MOS 31J (Teletypewriter Repairer). 3. A DA Form 2496 (Retrainee Reassignments), dated 14 June 1982, shows the applicant was relieved from MOS 31J training due to academic failure. After an interview with a noncommissioned officer, he requested training in MOS 24L. Upon completion of training, he was awarded MOS 24L on 11 March 1983. 4. A DA Form 4856 (General Counseling Form) included in the applicant's administrative separation packet shows the following: Date Event – Action Taken 24 May 82 Absent without authority – Nonjudicial punishment (NJP) 22 Jun 82 Absent without authority – NJP 23 Jul 82 Absent from formation without authority – Counseled/Retraining 11 Sep 82 Caught taking beer to training – Counseled/Retraining 2 Dec 82 Absent from formation without authority – Counseled/Retraining 22 Jan 83 Absent from duty without authority – Counseled 1 Feb 83 Absent from formation/Disobeyed a lawful order – Counseled 7 Feb 83 NJP imposed 8 Feb 83 Verbal/Written counseling by commander 15 Feb 83 Broke restriction imposed under NJP 17 Feb 83 Letter of reprimand issued by commander 17 Feb 83 Summarized NJP – vacated suspended punishment 5. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant was evaluated by a psychiatrist at Community Mental Health. The applicant was found to be fully alert and oriented, his mood was unremarkable, thinking process clear, thought content normal, and memory good. It also shows the applicant had the mental capacity to understand and participate in board proceedings. The applicant was cleared for administrative action deemed appropriate by the commander. 6. On 25 February 1983, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, based on unsatisfactory performance. a. The reasons for his proposed action were the applicant's demonstrated immaturity, inability to adapt to military life, crippling reactions towards mental and emotional stress beyond his normal daily routine, continuous misconduct, and low performance. b. The applicant was advised of his rights and the separation procedures involved. c. He was also advised that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. 7. On 16 March 1983, the applicant consulted with legal counsel and was advised of the reasons for separation and the rights available to him. a. He acknowledged that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He also acknowledged that he would not be permitted to apply for enlistment in the U.S. Army within 2 years of his separation. b. He elected to submit a statement in his own behalf. c. The applicant and his counsel placed their signatures on the document. d. The applicant's statement shows, in pertinent part, "I believe that such a discharge is not only in the best interests of the Army, but is also in my own best interests. However, I would request that the separation authority give consideration to awarding an honorable discharge. The problems I have encountered in adapting to the service have been relatively minor. Though I have come up short, I have worked hard at being a Soldier and, therefore, feel that an honorable discharge is justified. The honorable discharge will also be of great benefit to me as I try to make the adjustment from the military to the civilian community. 8. The commander recommended approval of the applicant's separation action based on unsatisfactory performance. 9. The separation authority approved the recommendation for discharge of the applicant, directed that his service be characterized as under honorable conditions, and that he be transferred to the USAR (Ready Reserve). 10. The applicant's DD Form 214 shows he was released from active duty on 24 March 1983 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance; his service was characterized as under honorable conditions; and he was transferred to the USAR (Annual Training). He had completed 1 year, 3 months, and 24 days of active service this period. 11. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13, in effect at the time, provided that a Soldier may be separated per this chapter when it was determined that he or she was unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance was to be characterized as honorable or under honorable conditions as warranted by their military record. b. Chapter 3, 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 contends his general discharge should be upgraded because he was told that if he completed training in MOS 24L and one year of service, he could leave active duty and enter the USAR (Ready Reserve); however, he was never told that he would lose any veteran benefits. 2. There is no evidence in the available record and the applicant provided no evidence in support of the above contention. 3. On 25 February 1983, upon initiation of the separation action, the company commander advised the applicant that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. The applicant then consulted with legal counsel, who also advised him that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. In addition, the applicant acknowledged with his signature that he understood the potential adverse impact the characterization of his service might have on him after his separation from service. Moreover, in his statement, the applicant asked the separation authority to issue him an honorable discharge (in lieu of a general discharge) because he recognized the "great benefit" it offered as he transitioned to civilian status. Thus, the evidence of record refutes the applicant's contention that he was not informed that the characterization of his service would jeopardize his eligibility for veteran benefits. 4. The applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. Considering all the facts of this case, the reason for his separation and characterization of discharge were appropriate and equitable. 5. The evidence of record shows the applicant was repeatedly counseled on his inability to be at his appointed place of duty and to fulfill his responsibilities as a Soldier. In addition, he received NJP on three occasions and he completed only about 16 months of his 3-year active duty obligation. Thus, his service was not fully honorable. 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) AR20150003813 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003813 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1