IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080004955 


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, that the narrative reason for separation (Unsatisfactory Performance) be changed.

2.  The applicant states, in effect, that he is requesting that the narrative reason for separation be changed to service connected disability because he has been awarded a service connected disability rating due to his right knee.  The reason he was given an unsatisfactory work performance was his inability to do the physical tasks that were asked of him because of his knee injury.  

3.  The applicant did not provide any additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army on 
14 January 1997, for period of 4 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 75B10 (Personnel Administration Specialist).  The highest grade he attained was pay grade E-3. 

2.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.

3.  Between November 1997 and March 1998, the applicant’s record shows that he was formally counseled on five different occasions for three incidents of failure to go at the prescribed time to his appointed place of duty, two incidents of disobeying a lawful order, for missing formation and for being disrespectful towards a noncommissioned officer.

4.  On 24 March 1998, the applicant accepted nonjudicial punishment for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-1, and 45 days of restriction and extra duty. 

5.  On 30 March 1998, a Mental Status Evaluation found the applicant mentally responsible, able to distinguish right from wrong, and he had the mental capacity to understand and participate in discharge proceedings.  On the same date a physical examination cleared the applicant for separation.

6.  On 2 April 1998, the unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with a discharge under honorable conditions (General).  The unit commander based this action on the applicant’s poor duty performance, the three incidents of failure to go at the prescribed time to his appointed place of duty, two incidents of willfully disobeying a lawful order and for being disrespectful towards a noncommissioned officer. 

7.  On 3 April 1998, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action for unsatisfactory performance, its effects and of the rights available to him.  Subsequent to counseling, he waived his right to have his case considered by an administrative separation board and he elected not to submit statements in his own behalf.

8.  On 6 April 1998, the separation authority approved the applicant’s separation, waived rehabilitation and directed that the applicant be separated with a discharge under honorable conditions (General).  On 17 April 1998, the applicant was discharged under the provisions of Army Regulation 635-200; chapter 13 with a discharge under honorable conditions, the narrative reason for separation is shown as Unsatisfactory Performance.  The DD Form 214 he was issued confirms he completed a total of 1 year, 3 months, and 4 days of active military service.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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.

10.  On 1 September 2006, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention was carefully considered and found to be without merit.  There is no evidence and the applicant provided no independent corroborating evidence to support his claim.

2.  The evidence of record shows the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge and the narrative reason for separation is commensurate with the applicant's overall record of military service.  By his misconduct, the applicant diminished the quality of his service.  Therefore, given the circumstances in this case and his overall record of service, there is insufficient evidence to support his request at this time.  

3.  Therefore, 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.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ____X____  ___X___  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.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20080004955



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ABCMR Record of Proceedings (cont)                                         AR20080004955



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