IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080010746 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that it has been 17 years since he was discharged from the Army and he never understood that a GD could hinder his future employment goals.  He asks that consideration be given to upgrade his GD to a HD to allow him the opportunity to fill a position in law enforcement that he has been recruited for.  He details his life history from birth to the present, and indicates his closeness to his family.  He states that he joined the Army right out of high school at the age of 18 and was later sent to serve in the Gulf War during Operation Desert Storm.  He states that upon returning from Saudi Arabia, as a result of all that he had been through and being away from his family, he asked to be discharged from the Army.  He claims that after having numerous discussions with his sergeant, he was eventually released under honorable conditions.  He states that he thought nothing about the type of discharge he received because it had the word “honorable” in it and he knew it was not dishonorable.  He states that the only thing he did was ask to go home early, and he indicates his downfall was being young, immature, and scared.  He states that he served his country to the best of his ability and asks to be given an HD.

3.  The applicant provides a self authored statement, submitted through his Representative in Congress, 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 military record shows he enlisted in the Regular Army (RA) and entered active duty on 26 June 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 31M (Multichannel Communications).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he served in Saudi Arabia from 29 January 1991 to 2 April 1991.  It also indicates he was promoted to the rank of private/E-2 (PV2) on 26 December 1990, and this was the highest rank he obtained while serving on active duty.

4.  The applicant’s record contains six General Counseling Forms (DA Form 4856) that were issued the applicant for the following infractions he committed during the period between 11 April and 15 August 1991:  bad checks; disobeying a lawful order; failing the Army Physical Fitness Test (APFT); being arrested for speeding and carrying a concealed weapon; and for being disrespectful in language.

5.  On 14 August 1991, the applicant underwent a mental status evaluation.  The results of this evaluation showed that the applicant's behavior and thought content was normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was clear, and his memory was good.  It was also determined that the applicant was mentally responsible, met retention requirements and had the mental capacity to understand and participate in separation proceedings.


6.  On an unknown date, the applicant was notified by his unit commander that action was being taken to separate him from the Army under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The reasons cited for the action was the applicant’s adverse affect on good order, morale and discipline.

7.  On 23 September 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  In his election of rights, the applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he received a GD.  Subsequent to this counseling, he elected to submit a statement in his own behalf.  

8.  In his statement, the applicant indicates, in effect, that he was not treated fairly from the very first day of assignment to his unit.  He claims that counseling statements contained in his separation packet caused his character of service to be downgraded to a GD.  He also states that he was never arrested, read any rights, handcuffed, or restrained by any measure.  However he admits that he was taken to a police station for speeding and carrying a concealed weapon and later tried in court and found not guilty.  The applicant also alleges that he was consistently looked down at and disrespected.  He states that while assigned in Saudi Arabia, he never worked in his MOS, he was treated like the platoon maid, slave or butler; picked on; and jumped in his sleep.  He indicates he was ignored, and laughed at, when he requested to be put on levy or to be transferred.  His chain of command unfairly used their authority against him.

9.  On 25 September 1991, the separation authority approved the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 and directed that the applicant receive a GD.  On 4 October 1991, the applicant was discharged accordingly. 

10.  The separation document (DD Form 214) issued to the applicant on the date of his separation shows he was separated under the provisions of Chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  It also shows that at the time, he had completed a total of 1 year, 3 months, and 9 days of creditable active military service.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated). 




11.  On 19 May 200, the Army Discharge Review Board (ADRB) determined that that applicant’s GD was proper and equitable.

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 contention that his GD should be upgraded to a HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  The evidence of record clearly shows the applicant received formal counseling from members of his chain of command for a myriad of disciplinary infractions on numerous occasions.  This disciplinary history clearly diminished the quality of his service below that meriting a fully honorable discharge, and supported his separation for unsatisfactory performance.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his GD accurately reflects the overall quality of his service.  

4.  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)                                         AR20080010746



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ABCMR Record of Proceedings (cont)                                         AR20080010746



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