RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 October 2005 DOCKET NUMBER: AR20050001276 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Eric S. Moore Analyst The following members, a quorum, were present: Mr. Curtis L. Greenway Chairperson Mr. Richard T. Dunbar Member Ms. Laverne V. Berry Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his general discharge (GD) be upgraded to a honorable discharge. 2. The applicant states that he was told after one year he could request upgrade of discharge. 3. The applicant provides no evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 6 August 1984, that date of his separation from active duty. The application submitted in this case is dated 13 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant's military records show that he entered active duty on 13 April 1983 for a period of 3 years. He successfully completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 94B (Food Service Specialist). The highest rank he attained while serving on active duty was private first class. 4. On 27 May 1984, the applicant was arrested by military police and charged with the failure to obey a general order, possession of a prohibited item (beer) and dereliction of duty (unsecured government property). 5. On 19 June 1984, the applicant was arrested for aggravated robbery while in the possession of a .25 cal pistol. 6. On 22 June 1984, the applicant was notified by his unit commander of the intent to initiate action to separate him from the Army under the provisions of Chapter 13, Army Regulation 635-200, for unsatisfactory performance because of apathy, defective attitudes, or inability to expend effort constructively. 7. The applicant consulted with legal counsel and, after being advised of the basis for the contemplated separation actions and its effects, he completed an election of rights by waiving his right to counsel. In connection with this processing, he elected not to submit a statement in his own behalf. 8. On 23 July 1984, the appropriate authority approved the applicant’s separation and directed that he be discharged by reason of unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200, and that he receive a GD. On 6 August 1984, the applicant was discharged accordingly. He completed a total of 1 year, 3 months, and 22 days of active military service. 9. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, 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. 11. Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his general discharge should be upgraded to a honorable discharge. 2. The applicant states that he was told that he could upgrade his discharge after one year, but there are no provisions that will automatically authorize the upgrade of a discharge. 3. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 5. The applicant's record of service included arrest for aggravated robbery, failing to obey a general order, and failing to secure a government property. As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge. 6. Records show the applicant should have discovered the alleged injustice now under consideration on 6 August 1984; therefore, the time for the applicant to file a request for correction of any injustice expired on 5 August 1987. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___rtd___ ___lvb___ ___cg___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _____ Curtis Greenway________ CHAIRPERSON INDEX CASE ID AR20050001276 SUFFIX RECON DATE BOARDED 2005/10/06 TYPE OF DISCHARGE GD DATE OF DISCHARGE 1984/08/06 DISCHARGE AUTHORITY AR 635-200 . . . . . DISCHARGE REASON Chapter 13, Unsatisfactory Performance BOARD DECISION DENY REVIEW AUTHORITY MR CHUN ISSUES 1. 2. 3. 4. 5. 6.