RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 February 2008
      DOCKET NUMBER:  AR20070014385


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. John G. Heck                  |     |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, in effect, that his general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his unit commander notified him
that he was recommending an HD, as indicated in the facts and circumstances
of the Army Discharge Review Board (ADRB) Case Report and Directive (OSA
Form 172), which proves his discharge was unjust.  He claims he was sick,
confused and under great stress at the time of his discharge.

3.  The applicant provides the ADRB OSA Form 172, with accompanying
documents, in support of his application.

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's record shows that he enlisted in the Regular Army and
entered active duty on 27 August 1997.  He was trained in and awarded
military occupational specialty (MOS) 88W (Traffic Management Coordinator),
and specialist (SPC) is the highest rank he attained while serving on
active duty.

3.  The applicant's record shows he earned the Army Good Conduct Medal,
National Defense Service Medal, Army Service Ribbon, Sharpshooter
Marksmanship Qualification Badge with Grenade Bar.  His record documents no
acts of valor or significant achievement.

4.  The applicant's record documents a disciplinary history that includes
his acceptance of non-judicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate
occasions, and an extensive record of formal counseling for a myriad of
performance and conduct issues.

5.  On 21 November 2001, he accepted NJP for dereliction of duty.  The
resultant punishment was a reduction to private first class (PFC) and
forfeiture of $323.00 (suspended); and 7 days extra duty.  Suspension of
the reduction and forfeiture was vacated and the applicant was reduced to
PFC, effective 21 November 2001, and forfeited $323.00 of pay.

6.  On 12 April 2002, the applicant accepted NJP for being absent without
leave (AWOL) from 17 February through 6 March 2002.  His punishment was a
reduction to private/E-1 (PV1) and 45 days of extra duty.

7.  On 24 April 2002, the unit commander notified the applicant that
separation action was being initiated to separate the applicant under the
provisions of Chapter 13, Army Regulation 635-200, by reason of
unsatisfactory performance. The unit commander cited the reason for taking
the action was the applicant's consistent failure to assimilate to military
standards and culture despite extensive rehabilitation efforts.

8.  In his separation notification to the applicant, the unit commander
informed the applicant that he was recommending an HD; however, that the
final decision on the type of discharge that would be issued rested with
the separation authority.  He also informed the applicant that the
separation authority was not bound by his recommendation as to the
characterization of the applicant's service and that he could either direct
the applicant's service be characterized as either honorable or general,
under honorable conditions.

9.  On 26 April 2002, the applicant acknowledged receipt of the unit
commander's separation recommendation, and confirmed that he had consulted
with legal counsel and had been advised of his rights in conjunction with
the separation action.

10.  On 21 August 2002, the separation authority directed the applicant's
separation pursuant to the provisions of Chapter 13, Army Regulation 635-
200, by reason of unsatisfactory performance, and directed that the
applicant receive a GD.  On 27 August 2002, the applicant was discharged
accordingly.  The separation document (DD Form 214) he was issued at the
time shows he completed a total of 5 years and 1 day of creditable active
military service.
11.  On 11 February 2004, the ADRB, after carefully considering the
applicant's request for an upgrade of his discharge and his entire military
service record, determined his discharge was proper and equitable, and
voted to deny his request.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  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.  The service of Soldiers
separated because of unsatisfactory performance will be characterized as
honorable or under honorable conditions as warranted by their military
records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his unit commander informed him he was
recommending an HD, which proves his discharge was unjust, and that he was
under extreme stress at the time were  carefully considered.  However,
there is insufficient evidence to support these claims.

2.  The evidence of record confirms that in his notification of separation
the unit commander did inform the applicant he was recommending the
applicant receive an HD.  However, in this same notification the unit
commander also informed
the applicant that although he was recommending an HD, the final decision
on the type of discharge that would be issued rested with the separation
authority, who was not bound by his HD recommendation and could either
direct an HD or GD.

3.  Further, the record confirms he consulted with legal counsel, who
advised him on the basis for the separation action and of his rights in
connection with the separation action.  As a result, it is clear the
applicant was fully informed and advised of what the type of discharge he
received could be and that this decision rested solely with the separation
authority, who was not bound the recommendations of either the unit
commander or any intermediate commanders.

4.  The applicant's record documents no acts of valor or significant
achievement, and his misconduct clearly diminished the quality of service
below that meriting a fully honorable discharge.  His separation processing
was accomplished in accordance with the applicable regulation, and all
requirements of law and regulation were met and his rights were fully
protected throughout the separation process.  Therefore, there is an
insufficient evidentiary basis to support an upgrade of his discharge at
this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __LMD___  __JGH__  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.




                                  _____Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070014385                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |2002/08/27                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsat Perf                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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