IN THE CASE OF:	  

		BOARD DATE:	        14 MAY 2009

		DOCKET NUMBER:  AR20090001264 


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

2.  The applicant states, in effect, his post-service conduct and accomplishments should be taken into consideration.  He has been a model citizen since his discharge.  He has earned a Juris Doctorate degree, passed the bar in New York State, and is an Assistant District Attorney.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  a copy of NA Form 13038 (Certification of Military Service); and

	c.  a copy of a certificate issued by the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, certifying he is duly licensed and admitted to practice as an attorney and counselor at law.

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 enlisted at age 18 in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years on 16 October 1987.  On 27 September 1988, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 28 September 1988 for training in military occupational specialty (MOS) 91A (Medical Specialist).

3.  The applicant completed basic combat training at Fort Knox, KY, and advanced individual training at Fort Sam Houston, TX.  He was awarded MOS 91A and was transferred to Germany for duty as a medic with Headquarters and Headquarters Company, 2nd Battalion, 37th Armor (HHC, 2/37 Armor).

4.  The applicant’s records contain an administrative separation packet discharging him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  The packet contains numerous DA Forms 4856-R (General Counseling Form) and DA Forms 2823 (Sworn Statement) attesting to the applicant’s duty performance, both good and bad.  These forms also describe a Soldier who selectively and periodically flaunted rules and regulations, and pushed insubordination to the limit without ever triggering nonjudicial or judicial sanctions.

5.  The applicant’s record shows on 16 April 1991 he was given a physical examination for the purpose of separation under chapter 13; however, he was not officially notified by his commander of the proposed separation until 24 July 1991, at which time he acknowledged notification of his commander’s intent to separate him.  He submitted a statement and an analysis of his DA Forms 
4856-R, pointing out discrepancies and inconsistencies, and otherwise offering his version of various events.

6.  On 4 July 1991, the applicant and a fellow Soldier exited the barracks via the Company A, 2/37 Armor stairwell.  The charge of quarters (CQ), a sergeant (SGT/E-5), did not recognize the Soldiers as members of Company A and told them they could not use the stairwell and must go back in the barracks and exit 

through the HHC stairwell.  Both Soldiers continued down the Company A 
stairwell and exited the building.  The CQ followed them outside, asked for their names, and insisted they return to the barracks and exit via the HHC stairwell.  One Soldier complied, while the other Soldier [the applicant] gave a false name and unit, asked the CQ, “why do you want to be a d**kh**d?” and walked away.  When the CQ asked the other Soldier the applicant’s identity, he supported the applicant and repeated the false name and unit.

7.  The CQ did not let the incident rest.  In the days following, the CQ verified that the name and unit provided by the applicant were false.  The applicant’s friend was interviewed and was told he, himself, could get into serious trouble if he continued to refuse to identify the applicant.  He then identified the applicant.  This event appears to have provided the impetus for the initiation of the separation action.

8.  The separation packet was forwarded to the Commanding Officer, 2/37 Armor who, on 25 July 1991, approved the separation action and directed the applicant be discharged with a GD and that he not be transferred to the Individual Ready Reserve.  However, the separation packet does not contain the actual request for discharge from the applicant’s immediate commander to the approval authority, therefore, the actual reason(s) for initiating the discharge action cannot be determined.

9.  A synopsis of the DA Forms 4856-R found in the administrative separation packet reveals the following:

Time Frame					Reason for Counseling/Performance Assessment

19900706						Failure to repair (FTR) – missed formation
19910008-12					Overall very good performance, but late one time
19901015-19					Good performance
19901021-27					Good performance
19901028-1103				Outstanding performance
19901104-10					Above the rest
19901111-17					Marginal duty performance
19901203						Unclean barracks room, unsecured wall locker
19901209						FTR – did not report for room inspection
19910101-12					Up to standards
19910101-31					Outstanding performance
19910218						Smelled of alcohol on duty – failed to accomplish
    tasks
19910221						Unsatisfactory duty performance – took 21/2 hr lunch

19910303						Unclean barracks room

19910709						Failure to obey a noncommissioned officer – exited
								Barracks through a door he was told not to use

10.  The applicant received a 10 July 1991 2nd Battalion 37th Armor Certificate of Achievement.  It states:

[The applicant] is awarded the Certificate of Achievement] for outstanding service from February 1989 to August 1991.  While you were assigned to the Second Battalion Thirty Seventh Armored Regiment, you displayed outstanding drive and ability to accomplish any mission given to you.  Your relentless devotion to duty and professionalism reflects great credit upon you, Second Battalion Thirty Seventh Armored Regiment, and the United States Army.

This Certificate of Achievement was signed on 10 July 1991 by the same commander who, on 25 July 1991, approved the applicant’s discharge for unsatisfactory performance.

11.  On 28 August 1991, he was discharged with a GD for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He was credited with 2 years and 11 months of net active service with no time lost.

12.  The applicant, in his request, asks that his completion of a law degree be taken into account in granting him a discharge upgrade.  However, he provided only a copy of a certificate issued by the Appellate Division of the Supreme Court of the State of New York, First Judicial Department, certifying he is duly licensed to practice as an attorney in New York.  He did not provide law school transcripts, nor did he provide proof he was an Assistant District Attorney performing a valuable public service.

13.  A member of the staff of the ABCMR queried the public records of the New York State Unified Court System.  From that query, it was verified the applicant was a graduate of City University of New York (CUNY) Law School and was employed by the Office of the District Attorney, Kings County, 350 Jay Street, Brooklyn, NY.

14.  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.

15.  Army Regulation 635-200, in paragraph 3-7a, provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

16.  Army Regulation 635-200, in paragraph 3-7b, provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his GD be upgraded to an HD.

2.  A thorough review of the applicant’s service records provide a contradictory picture of him as a young Soldier.  At times he was characterized as an outstanding performer, while at other times he appeared to push the limits of authority while always having an excuse for his conduct.  Interspersed between periods of good duty performance were periods when his penchant for challenging rules and authority seemed to visibly annoy his chain of command.

3.  Nevertheless, the applicant’s records contain no instances of nonjudicial punishment under Article 15, UCMJ, nor are there any letters of reprimand or other forms of censure.  Furthermore, just weeks before being sent back to the U.S. for discharge, his battalion commander feted him with a Certificate of Appreciation for “…outstanding service from February 1989 to August 1991…[for] display[ing] outstanding drive and ability to accomplish any mission…[and for] relentless devotion to duty and professionalism….”


4.  In light of the above, it would be in the interest of justice and equity to upgrade his discharge from GD to HD.

BOARD VOTE:

___X_____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his GD of 27 August 1991 and issuing him an HD by reason of Secretarial authority effective that date.



      ________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)                                         AR20090001264



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ABCMR Record of Proceedings (cont)                                         AR20090001264



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