IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150007121 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 under honorable conditions (general) discharge. 2. The applicant states, in effect, that his performance was good until he got depressed and he intended to make the Army a career. 3. The applicant provides the following: * a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) * a letter from his church * a certificate showing his completion of Basic Training at Fort Jackson, South Carolina * three certificates from the Atlanta Technical College * an organization membership certificate for the Hospitality Industry Professionals – Atlanta * two resumes 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 22 September 1983. He entered active duty and completed his basic training at Fort Jackson, South Carolina. He did not complete advanced individual training (AIT) and was not awarded a military occupational specialty. 3. He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: a. on 16 January 1984, for absenting himself from his place of duty (AWOL) from on or about 4 January 1984 through on or about 5 January 1984; and b. on 15 May 1984, for failing to obey a lawful order by missing bed-check on 12 May 1984. 4. His record shows he was formally counseled by members of his chain of command on numerous occasions between 24 April 1984 and 31 May 1984, for his attitude, motivation, lack of performance, and his own stated desire to be separated from the Army. One counseling statement refers to him being sent to the Community Mental Health Activity (CMHA) for rehabilitation. 5. A DA Form 2496 (Disposition Form), dated 30 May 1984, subject: Unit Commander's Trainee Referral to CMHA, stated his behavioral observations were that he was nervous, depressed and homesick. It further stated that his potential for retention was poor due to his lack of motivation and wanting out of the military since basic training. He was withdrawn socially and became angry with others at trivial things. He was offered stress coping skills and other methods to assist him but it was felt it would be fruitless. The CMHA's recommendation was that he was psychiatrically cleared for any administrative or judicial actions and a discharge would be appropriate. 6. The applicant's immediate commander notified him on 30 May 1984 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 and poor attitude towards the military service. 7. The applicant acknowledged receipt of the proposed separation action on 30 May 1984. He waived consultation with legal counsel and understood 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. He elected not to submit any statements in his own behalf. 8. His intermediate commander recommended discharge on 5 June 1984, under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance. She further stated in a letter to the separation authority that: * the applicant was a second time AIT failure * upon his arrival, he immediately requested a discharge and stated that he had requested a discharge from his previous commander and had no desire to train * counseling had failed to reverse his negative attitude toward training * he deliberately became a disciplinary problem; he was an incorrigible individual who refused to train 9. The separation authority approved the applicant's discharge on 8 June 1984, 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 (general). 10. The applicant was discharged on 15 June 1984. 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). 11. 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. 12. The applicant provides: a. A letter from his church welcoming him as a member. b. A certificate of training showing his successful completion from Basic Training at Fort Jackson, South Carolina on 2 December 1983. c. Three certificates from the Atlanta Technical College, showing his completion and award of an Associate of Applied Science degree in Culinary Arts. d. A certificate attesting to his membership in the Hospitality Industry Professionals - Atlanta, and two personal resumes. 13. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. 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. b. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for upgrade of his general discharge was carefully considered. 2. His duty performance was deemed substandard based on two instances of NJP, a period of negative counseling, two AIT failures, and his own desire to be separated out of military service contrary to his contention now. Accordingly, his chain of command initiated separation action against him. 3. The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007121 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1