IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080009654 


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.    

2.  The applicant states that he worked hard during his military service, earned an accelerated promotion to specialist (SPC)/E-4, served in Southwest Asia during the Gulf War, and had a positive character building military experience overall.  However, he always had trouble passing his Army physical fitness test (APFT) and although he was not diagnosed with asthma, he believes this chronic condition may have contributed to his difficulties in passing the APFT.  He goes on to state that his 15-year old daughter was recently diagnosed with “exercised induced asthma,” with symptoms similar to those he experienced during his military service.  He concludes that he made more positive life changes since being discharged.  He has been married for 16 years, raised a family and a household, and received his license as a registered nurse.

3.  The applicant provides a copy of DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 March 1993; DA Forms 4856 (General Counseling Form), dated 4 June 1992, 31 March 1992, and 26 February 1993; and DA Form 3609-R (Gunner’s Examination-4.2 Inch Mortar M30), 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 he enlisted in the Regular Army for a period of 4 years on 22 August 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was SPC/E-4.

3.  The applicant's records show he was awarded the Army Service Ribbon, the National Defense Service Medal, the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal, the Overseas Service Ribbon, the Army Achievement Medal (1st Oak Leaf Cluster), the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during this period of military service.

4.  On 24 February 1992, the applicant failed a record APFT.  He was subsequently counseled by his platoon sergeant who informed him that he was being placed on a remedial physical training program and that “further performance of this nature may result in punitive action under the Uniform Code of Military Justice (UCMJ) and/or separation under the provisions of Army Regulation 635-200 (Personnel Separations).  The applicant acknowledged having been counseled and understood the reason for this counseling.  He further concurred that the information stated on the DA Form 4856 accurately reflected the counseling session.  

5.  On 24 November 1992, the applicant failed a second consecutive APFT.  He was again counseled by his platoon sergeant who informed him that “further performance of this nature may result in punitive action under the UCMJ and/or separation under the provisions of Army Regulation 635-200.  The applicant acknowledged having been counseled and understood the reason for this counseling.  He further concurred that the information stated on the DA Form 4856 accurately reflected the counseling session.  

6.  On 4 March 1993, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200, for unsatisfactory performance.  The immediate commander remarked that the applicant had failed two consecutive APFT tests.  He further recommended a General Discharge Certificate.   

7.  On 4 March 1993, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  

8.  On 4 March 1993, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-206 because of unsatisfactory performance.  The immediate commander recommended a General Discharge Certificate. 

9.  On 16 March 1993, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 24 March 1993.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of an under honorable conditions (general) and that he completed a total of 3 years, 7 months, and 3 days of creditable military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his first discharge within its 15-year statue of limitations.

11.  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 positive military experience and his successful post service personal and professional achievements are noted; however, they are not sufficiently mitigating for the requested relief.  Furthermore, there is no evidence in the available record and the applicant did not provide any substantiating evidence that he suffered from asthma or that his two consecutive APFT failures were a result of this alleged medical condition.  

2.  The evidence of record shows that after his first APFT failure, the applicant was placed on a remedial physical training program and was counseled regarding his responsibility to meet Army fitness standards.  However, he failed a second APFT and was recommended for separation as a result of this unsatisfactory performance.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There does not seem to be an error or an injustice in his discharge. 

3.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.



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               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)                                         AR20080009654



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ABCMR Record of Proceedings (cont)                                         AR20080009654



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