IN THE CASE OF:	  

	BOARD DATE:	  24 June 2008

	DOCKET NUMBER:  AR20080005592 


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 discharge and removal of the "Unsatisfactory Performance" entry from his narrative reason for separation.

2.  The applicant states that his military occupational specialty (MOS) training required a top secret clearance, which put him in holdover status, remaining in a basic training environment for approximately 11 months.  He further adds that this unhealthy situation caused by the Army created an unhealthy attitude in him, resulting in poor performance.  He concludes that after his discharge, he successfully completed 7 years of inactive U.S. Army Reserve (USAR) service. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 May 1987, 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 records show that he enlisted in the Regular Army for a period of 3 years on 15 April 1986.  He completed basic combat training at Fort Leonard Wood, Missouri, and was subsequently assigned to Company E, 2nd School Battalion, U.S. Army Intelligence Center and School (USAICS), Fort Huachuca, Arizona, on 3 January 1987, to attend advanced individual training (AIT) for MOS 97B (Counterintelligence Specialist).

3.  The applicant's records show that he was awarded the Sharpshooter Marksmanship Qualification Badge with Grenade Bar and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

4.  The applicant's record reveals several counseling statements where the applicant was counseled for missing morning formations, being absent from recall formations, and failing a diagnostic physical fitness test and retest.

5.  On 28 February 1987, the applicant was counseled for failing 11 tests during his course of instruction and was thereby relieved by the Director from the 97B course. 

6.  On 19 March 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a senior commissioned officer, by patronizing a club while not on an authorized pass, on or about 1 January 1987; disobeying a lawful order by consuming alcohol within the barracks, on or about 13 February 1987; failing to go at the time prescribed to his appointed place of duty, on or about 14 February 1987; and disobeying a lawful order from a senior commissioned officer by failing to be in his room by curfew, on or about 1 January 1987.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2, 7 days of restriction, 7 days of extra duty, and forfeiture of $172.00 pay (suspended for 30 days).

7.  On 13 April 1987, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend his separation from the Army for unsatisfactory performance and disqualification for further service under chapter 13-2(a) of Army Regulation 600-200 (Personnel Separations).
8.  On 13 April 1987, the applicant acknowledged receipt of the letter of notification of separation action in accordance with chapter 13 of Army Regulation 635-200.  He further consulted with counsel and was advised by his counsel of the basis for the contemplated action to accomplish his separation for 
unsatisfactory performance under the provisions of chapter 13-2(a) of Army Regulation 635-200.  He further declined submitting a statement on his behalf for consideration.

9.  On 13 April 1987, the immediate commander initiated separation action against the applicant for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200.  The commander stated that the applicant failed to meet the minimum standards prescribed for successful completion of MOS 97B course due to comprehension and lack of motivation.  The immediate commander further remarked that the applicant had demonstrated continually that he was a substandard Soldier by his actions in the unit which have continued without showing any effort towards improvement. 

10.  On 30 April 1987, the separation authority waived the rehabilitation requirements, approved the applicant's discharge from the Army for unsatisfactory performance, and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 5 May 1987.  The DD Form 214 he was issued confirms he was released from active duty for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200, with an Under Honorable Conditions (General) Discharge, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  This form also shows that he completed 1 year and 21 days of creditable active military service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s        15-year statute of limitations.

12.  After his discharge from the Regular Army, it appears that the applicant was transferred from the USAR Control Group and was assigned as a respiratory specialist to the 810th Convalescent Center, Lexington, Kentucky.

13.  The applicant's records show that he had an extensive record of unexcused absences from his scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA).  The applicant's records further show that he was 



notified in writing of his unexcused absences and that each notification letter advised him that if he accumulated nine unexcused absences within a one-year 
period, he could be declared an unsatisfactory participant and transferred to the Individual Ready Reserve (IRR) for the balance of his service obligation.  The records show that he acknowledged receipt of the notification letters. 

14.  On 25 March 1990, he was notified by memorandum that he had accrued 12 unexcused absences within a one-year period.  

15.  On 23 March 1990, by letter, the applicant’s immediate commander notified him that he was charged with 12 unexcused absences within a one-year period and that he could be declared an unsatisfactory participant and subject to separation for misconduct under the provisions of chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel).

16.  On 1 April 1990, the applicant's immediate commander declared him an unsatisfactory participant and directed his transfer to the Individual ready Reserve (IRR).

17.  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.

18.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge and removal of the "Unsatisfactory Performance" entry from his narrative reason for separation. 


2.  The specific reason for the applicant's discharge was his academic failure and lack of motivation.  There is no evidence to indicate that when a Soldier is awaiting the outcome of a security clearance background investigation, it would 
lead to an "unhealthy environment."  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his academic failure was the result of awaiting a security clearance.

3.  The applicant's records reveal a disciplinary history which includes multiple performance counseling statements and one instance of proceedings under Article 15.  His discharge was in accordance with applicable regulations and all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service. 

4.  Furthermore, the evidence of record shows that subsequent to the applicant's discharge from the Regular Army, having accrued 12 unexcused absences, the applicant was declared by his immediate commander an unsatisfactory participant and was subsequently transferred to the IRR.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
      _______________________
      	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)                                         AR20080005592



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ABCMR Record of Proceedings (cont)                                         AR20080005592



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