IN THE CASE OF:	  
		BOARD DATE:	  
		DOCKET NUMBER:  AR20080007740 


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, upgrade of his general discharge to honorable. 

2.  The applicant states, in effect, he believes his discharge is unjust because he was not informed of the type of discharge he would be receiving at the time.  He also states that he never fully looked at his military records and did not understand them until now.  He is aware that it has been over 15 years since his discharge, but now he really needs the United States to support him and his family.  He has been doing his best since he was released from the Armed Forces without any assistance, but now he has fallen on hard times and really needs help for himself and his family.  This upgrade will help him to receive medical benefits for himself so he can continue to provide for his family and keep in good health.  

3.  The applicant provides no additional documentation in support of his request. 

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 5 July 1989, for 4 years.  He completed training and was awarded military occupational specialty 13B, Cannon Crewmember.  He was promoted to pay grade E-4 on 4 June 1991.

3.  On 19 November 1991, the applicant was counseled by the first sergeant, pertaining to his absence from unit formation and missing the unit's movement to the Sicily Drop Zone on 17 November 1991.  He was advised that up to that point he had performed his assigned duties in an exemplary manner and had kept his off-duty lifestyle pretty much in check to include his marital problems.  He was also advised that action under the Uniform Code of Military Justice (UCMJ) would be requested against him.

4.  On 20 November 1991, the applicant was counseled by his unit commander, pertaining to his overall behavior in the following areas:  marital, financial, and failure to report/missing movement.  He was also advised that if his performance and conduct continued to be unsatisfactory, he would be processed for separation under the provisions of Chapters 5, 13, or 14 of Army Regulation
635-200.  He was further advised that if he was separated under the provisions of Chapter 13, he could receive a general discharge.

5.  On 26 November 1991, for his monthly counseling session, the applicant was advised to take strides to square away his off-duty life so that it would not reflect on his duty attitude and accomplishments.

6.  On 10 December 1991, the applicant was counseled by his unit commander, pertaining to his performance dropping since 17 November 1991.  He was advised, in effect, that his problems were affecting his duty performance and because of his duty position he must be dependable.  

7.  On 10 December 1991, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 19 November 1991 and for a charge of misconduct.  The punishment imposed included reduction to pay grade E-3, suspended, to be automatically remitted if not vacated before 10 June 1992; forfeiture of $230.00 pay for one month; and 14 days restriction.  He did not appeal the punishment.

8.  The applicant’s suspension of reduction to pay grade E-3 was vacated and he was reduced to pay grade E-3 on 6 January 1992.
9.  A Report of Mental Status Evaluation, dated 28 January 1992, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, a medical doctor, considered him to have the mental capacity to understand and participate in separation proceedings.  

10.  On 16 March 1992, the applicant's unit commander initiated action to separate him for unsatisfactory performance.  He stated that the applicant had a history of failures to report, marital problems, and problems with handling his finances properly.  The unit commander further stated that the applicant had also been given an Article 15 for failure to report and misconduct.  He recommended the applicant received a general discharge. 

11.  On 16 March 1992, the applicant was notified of his unit commander’s intent to recommend him for elimination from the US Army, under the provisions of Chapter 13, Army Regulation 635-200.

12.  On the same date, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He waived his right to have his case heard before a board of officers.  He acknowledged that he understood that he might be issued a general discharge under honorable conditions.  He also elected not to submit a statement in his own behalf.   Subsequent to his having received this consultation, the applicant's unit commander recommended the applicant's separation from the service prior to the expiration of his term of service.

13.  In a Transition Counseling Acknowledgement Checklist, dated 13 April 1992, the applicant acknowledged his separation with a general discharge and elected not to undergo counseling for availability of medical/dental coverage and health benefits after separation.

14.  On an unknown date, the appropriate authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  

15.  The applicant was discharged on 16 April 1992, in pay grade E-3, under the provisions of Army Regulation 635-200, Chapter 13, for Unsatisfactory Performance.  His character of service was characterized as under honorable conditions (general).  He was credited with 2 years, 9 months, and 12 days total active service.

16.  There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
17.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions as warranted by their military records.

18.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant's contentions have been noted; however the applicant’s records show he received counseling pertaining to the following areas:  marital, financial, and failure to report/missing formation.  He was punished under Article 15, UCMJ, for failing to report and misconduct.  During his counseling, he was advised that if separated, he could receive a general discharge.  At the time separation action was initiated, he also acknowledged that he might be issued a general discharge under honorable conditions. After approval of his separation, he acknowledged his separation with a general discharge.  

3.  The evidence of record confirms the applicant’s release from active duty processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate, considering all the facts of the case.  The applicant's repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.


4.  The applicant has provided no evidence to show that his release from active duty was unjust or that his discharge should be upgraded because he would like to receive medical and/or other benefits administered by the Department of Veterans Affairs (VA) and other Federal and State social services organizations.  However, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

5.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  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

__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)                                         AR20080007740



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ABCMR Record of Proceedings (cont)                                         AR20080007740


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