BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150010070 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150010070 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150010070 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. 2. The applicant states he would like to think that he was not mature enough at the time. This is something that he regrets every day. 3. The applicant does not provide any 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 29 July 1981 and he held military occupational specialty 05C (Radio Telephone Operator). He served in Korea from January 1982 to January 1983. 3. His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * 7 July 1982, in Korea, for being drunk and disorderly * 12 November 1982, in Korea, for failing to go at the time prescribed to his appointed place of duty 4. He was absent without leave from his unit in Korea from on or about 2 to 4 December 1982. He was assigned to Fort Gordon, GA, around January 1983 following his tour in Korea. 5. On 8 February 1983, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his misconduct. He was provided a copy of this bar but elected not to submit a statement on his own behalf. The bar was approved on 11 February 1983. 6. On 1 September 1983, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully urinating on the 2nd floor hallway and for being disrespectful toward a noncommissioned officer on 20 August 1983. 7. On 8 September 1983, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance. The immediate commander recommended the issuance of a general discharge. 8. On 9 September 1983, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel. He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive, and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit statements on his behalf and further acknowledged he understood that: * he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, an act of consideration does not mean his discharge would be upgraded 9. On 9 September 1983, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance. The immediate commander cited the applicant’s previous misconduct. 10. On 15 September 1983, the intermediate commander recommended approval and opined that the applicant was a marginal Soldier and despite efforts by his chain of command to motivate him, he did not show the ability to become a professional Soldier. His inability to cope with military rules and regulations made him a liability to the unit and the Army. His immediate elimination was recommended. 11. On 23 September 1983, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 3 October 1983. 12. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 3 October 1983 in accordance with chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general) and he completed a total of 2 years, 2 months, and 4 days of active service with 2 days of lost time. 13. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15 year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his multiple instances of NJP, bar to reenlistment, and inability to conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards. 2. It appears he was given ample time to comply with the standards through counseling but he was unable to conform to the standards. His marginal performance, which demonstrated a lack of motivation, appears to have left no other option but to discharge him. Accordingly, his immediate commander initiated separation action against him. 3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 4. Based on his failure to meet Army standards, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not rise to the level required for an honorable discharge. He provides no evidence to show otherwise. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010070 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010070 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2