RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070017757 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Donald L. Lewy

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 under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he had passed all of his Army physical training tests but was always close to being overweight by Army standards.  He further states that he was told his discharge was due to being overweight and not for unsatisfactory performance.  He states that he has had a weight problem his whole life and was going through a divorce at the time.  He contends that these problems did not interfere with the performance of his duty and that his service should earn him a second chance.    

3.  The applicant provides no supporting documentation.

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 January 1991, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 19K1O (M1 Armor Crewman).

3.  On 1 May 1991, the applicant was assigned for duty as an M1 Armor Crewman with Troop A, 1st Squadron, 12th Cavalry Regiment, Fort Knox, Kentucky.

4.  On 24 June 1991, the applicant was barred to reenlistment due to his not meeting the Army weight requirement. 

5.  On 16 April 1992, the applicant received counseling due to his second failure to pass the Army Physical Fitness Test (APFT) and for not making satisfactory progress on the overweight program.  The applicant signed the counseling form without making any comment.  

6.  On 30 April 1992, at a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

7.  On 8 July 1992, the applicant was notified by his commander of his intention to separate him from the military service for unsatisfactory performance due to his failure to meet Army training standards by passing the APFT.

8.  On 13 July 1992, the applicant acknowledged receipt of the commander’s notice to separate him.  The applicant stated that he was fully aware that if elimination action was approved he could possibly be discharged with an honorable or under honorable conditions discharge.  He further stated that he understood all of his rights as to counsel, and his rights as to waiving any of his options.  Evidence of his consulting with counsel is not available in his records.

9.  On 21 July 1992, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  The commander stated that the applicant did not meet the physical testing requirements and recommended that he be separated prior to the expiration of his term of service and that he receive an under honorable conditions discharge.

10.  On 27 July 1992, the appropriate authority approved the recommendation for release from active duty (REFRAD) and directed that he be issued a General Discharge Certificate.  He further directed that the applicant be transferred to the Individual Ready Reserve.

11.  Accordingly, he was REFRAD under honorable conditions on 7 August 1992, and transferred to the United States Army Reserve Control Group (Annual Training).  He completed 1 year, 7 months and 6 days of creditable active service.





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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ LDS__  __DLL___  __ECP       DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



___ Linda D. Simmons __
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.