RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060013254 


	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.


x

	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 be upgraded to honorable. 

2.  The applicant states that at the time, his wife was leaving him and he had a drinking problem.  He was told to straighten up or get out and he was not offered any type of counseling, so getting out seemed the best option at the time. 

3.  The applicant provides no additional documents with his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 August 1991.  The application submitted in this case is dated 5 September 2006.

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 was born on 26 July 1970 and initially enlisted in the United States Army Reserve (USAR).  He served in the USAR as a supply specialist until he enlisted in the Regular Army on 13 April 1989 for a period of 4 years and assignment to Europe.    

4.  He was transferred to Germany on 23 May 1989 and was advanced to the pay grade of E-3 on 1 November 1990.  He got married on 15 November 1990.   

5.  He departed Germany on 15 January 1991 and was transferred to Fort Riley, Kansas, where he was assigned to a mobile Army surgical hospital (MASH) for duty as a supply clerk.    

6.  On 29 May 1991, the applicant was command referred to the Alcohol  and Drug Abuse Prevention and Control Program (ADAPCP).  The applicant was enrolled in Track II of the program. 

7.  On 30 May 1991, the applicant was counseled by his first sergeant and was informed that the commander was considering whether to discharge him from the Army due to his receiving NJP in April 1991 for failure to repair, his failure to go to his place of duty, disobeying a lawful order from a superior noncommissioned officer, for failure to pass the Army Physical Fitness Test (APFT) since 27 July 1989 and for poor job performance.  

8.  On 3 June 1991, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty and for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.
      
9.  On 4 June 1991, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited the applicant’s disciplinary record, his APFT failures and his failure to respond to repeated counseling as the basis for his recommendation.  The bar to reenlistment was approved by the battalion commander on 12 June 1991.

10.  The applicant was counseled on 19 June 1991 for his failure to go to his place of duty (extra duty) and for missing his appointment at social services. 

11.  On 28 June 1991, NJP was imposed against the applicant for three specifications of failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

12.  On 16 July 1991, the applicant’s commander informed him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He cited the applicant’s disciplinary record, his failure to respond to numerous counseling sessions and his demonstrated inability to follow orders as the basis for his recommendation.

13.  The applicant consulted with his defense counsel on 16 July 1991 and on 24 July 1991, the appropriate authority approved the recommendation for discharge.  He directed that the applicant be furnished a General Discharge Certificate.

14.  Accordingly, he was discharged under honorable conditions on 2 August 1991, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 2 years, 3 months and 20 days of active service during his current enlistment.

15.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate. 

17.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.

18.  Paragraph 3-7 also 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 AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted; however, not only are they not supported by the evidence of record, they are also not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed during his service.  His service simply does not rise to the level of a fully honorable discharge. 

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
    
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 August 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 August 1994.  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

___x_  __x___  _x___  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.


_____ x________
          CHAIRPERSON


INDEX

CASE ID
AR20060013254
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
1991/08/02
DISCHARGE AUTHORITY
AR635-200/CH13 . . . . .  
DISCHARGE REASON
UNSAT PERF
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.4900
572/A49.00
2.

3.

4.

5.

6.