BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20150012619 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: 10 November 2016 DOCKET NUMBER: AR20150012619 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: 10 November 2016 DOCKET NUMBER: AR20150012619 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 to an honorable discharge. 2. The applicant states, in effect: a. He served 3 years in the Army and he was going to get an honorable discharge; however, he extended so that his wife could have their baby. b. He was charged with driving while intoxicated (DWI) when his car was parked; therefore, he could not do his job, because he could not drive anymore. He believes it was the wrong thing to do. 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. On 2 April 1980, the applicant enlisted in the Regular Army in pay grade E-1. He completed training as a cannon fire direction specialist. 3. The applicant accepted nonjudicial punishment (NJP) on 17 April 1981, for having in his possession one or more grams of marijuana. 4. On 19 May 1981, the applicant was convicted by a summary court-martial of the following: * disobeying a lawful order to open the door * being derelict in the performance of the duties of radio watch * violating a lawful general regulation by failing to properly maintain control of a military vehicle as the driver of an M561 5. He extended his enlistment for 8 months on 15 April 1983. 6. On 22 June 1983, the applicant accepted NJP for using disrespectful language towards a commissioned officer and for assaulting his wife by striking her with his closed fist. 7. On 27 June 1983, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. His commander cited one court-martial conviction, two company grade Articles 15, and the time spent in an Army confinement facility as the basis for his recommendation. The applicant acknowledged receipt of the separation notification and after consulting with counsel, he elected to submit a statement in his own behalf. He stated: a. He would like to stay in the Army until his wife had their baby. b. He knew he had some bad performance in his record, but he did not believe he was a bad Soldier. c. He had done some good things while he was in the Army, such as winning truck of the month and the truck of the post. He received a letter of appreciation and he received a letter for helping with the Special Olympics. d. He did not believe he should be kicked out of the Army. Whenever he got charged he took the punishment without trying to fight it. 8. The appropriate authority approved the separation recommendation on 7 July 1983 and directed the issuance of a general discharge. On 22 July 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. He completed 3 years, 2 months, and 28 days of net active service this period. He received a general discharge. 9. On 14 December 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. a. Chapter 13 of this regulation 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. 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. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. The applicant's contentions have been considered. 2. According to the applicable regulation, Soldiers will be separated 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 orde,r 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 (general). 3. The evidence of record shows the applicant accepted NJP on two separate occasions. He was also convicted by a summary court-martial for his acts of indiscipline. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012619 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012619 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2