IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080015192 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he feels an injustice was done when his performance was deemed unsatisfactory, resulting in a general discharge.  He also states that for the past 20 years his military credentials have never been challenged until his recent denial for overseas employment, which requires an honorable discharge.  

3.  The applicant states any shortcomings that may have arisen during his tour of duty resulted in his being repeatedly selected for extra duties.  He states he was out ranked by at least 90 percent of his platoon and he always received unfavorable details.

4.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 December 1988, four certificates of completion for civilian and military courses of instruction, and two certificates of achievement.

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 personnel record shows he initially enlisted in the Regular Army on 2 September 1986 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty of 31K (Combat Signaler).

3.  The applicant's records contain six formal counseling sessions conducted during the period from 10 March 1988 through 28 June 1988 concerning the applicant's failure to report on time for duty, poor duty performance, and his personal appearance.  

4.  On 1 July 1988, the applicant was promoted to specialist/pay grade E-4.

5.  The applicant received three more formal counseling sessions conducted during the period 19 July to 16 August 1988 concerning his failure to report on time for duty and poor duty performance.

6.  On 1 September 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty on 20 June (twice), 25 June, 
30 July, and 16 August 1988.  He received a reduction to the grade of private first class/pay grade E-3, 14 days restriction, and 14 days extra duty.

7.  On 17 November 1988, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of paragraph 13-2 of Chapter 13 (Separation for Unsatisfactory Performance) of Army Regulation 635-200 (Personnel Separations) for unsatisfactory performance.  The letter states that the proposed action was being taken due to the applicant's frequency of failing to report and his substandard performance.

8.  The commander's letter advised the applicant of his right to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander further advised the applicant he was being recommended for a general discharge under honorable conditions.  

9.  On 18 November 1988, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unsatisfactory performance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

10.  On 18 November 1988, the applicant's commander recommended him for discharge due to unsatisfactory performance.  The commander's specific reasons for the recommendation for discharge were the applicant's frequency of failing to report and his substandard performance.

11.  On 30 November 1988, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

12.  On 7 December 1988, the appropriate authority waived rehabilitative transfer, approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200, directed that the applicant’s service be characterized as general under honorable conditions, and that he be issued a General Discharge Certificate.

13.  On 19 December 1988, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.   He had completed 2 years, 3 months, and 18 days of active service that was characterized as under honorable conditions.  

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

15.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge under honorable conditions should be upgraded to an honorable discharge.  He contends he was recently denied overseas employment because it requires an honorable discharge.

2.  The applicant also contends that he was repeatedly selected for extra duties and because he was outranked by 90 percent of his platoon he always received unfavorable details.  However, the applicant has not submitted any evidence to support these contentions.

3.  The applicant had received six formal counseling sessions over a 4 month period concerning his poor performance and his failure to report to duty on time.  In spite of these counseling sessions, the applicant was promoted to specialist 
on 1 July 1988.  However, he then received three additional formal counseling sessions over a 2 month period for his failure to report to duty on time and his poor duty performance.  He subsequently received NJP for failure to report for duty on five occasions.  Therefore, the applicant was given more than ample opportunity to improve before he was ultimately recommended for discharge.

4.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The ABCMR does not upgrade discharges based solely on the passage of time.  Therefore, in view of the above, there is insufficient basis to upgrade the applicant's discharge.

6.  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 that 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)                                         AR20080015192





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ABCMR Record of Proceedings (cont)                                         AR20080015192



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