IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090004638 


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 that his general under honorable conditions discharge be upgraded to fully honorable.  

2.  The applicant states that it was understood in his unit that if you were unable to make it to post for formation, you could call your chain of command.  He later found out that this was not true.  He explains that he was in Nashville, TN and could not make it back to Fort Campbell, KY.  He called everyone in his chain of command.  Those in his chain of command who answered their phones advised him to find his own way back to post.  When he was finally able to get a ride, it was too late.  As a result, he was late for formation.  He explains other problems he encountered to include his inability to finish the 2-mile run of the Army Physical Fitness Test (APFT) and to pass an inspection.  He feels that he was not a poor Soldier and does not deserve this type of discharge.  He states that he is glad that he served and he is very proud of it.  He wished he would have had the support of his chain of command.  

3.  The applicant provides four character references 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 enlisted in the Regular Army on 6 October 1989.  At the completion of the required training, he was awarded military occupational specialty 88M (motor transport operator).  His highest grade held was specialist, E-4.  He was assigned to Fort Campbell, KY in February 1990.  

3.  On 7 June 1990, he received adverse counseling regarding his failure of the company physical training (PT) test.  

4.  He served in Saudi Arabia from 12 September 1990 to 12 April 1991.

5.  In July 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of failing to be at his appointed place of duty on 22 July 1991 (PT and platoon clean-up detail).  

6.  On 29 July 1991, the applicant was barred from reenlistment based on his DUI [driving under the influence] on 17 July 1991.  

7.  On various occasions between May 1991 and February 1992, the applicant received numerous adverse counseling statements regarding the following: writing a bad check, failure of an inspection; failure of PT run; drinking and driving; suspension of driving privileges; violation of battalion dress code policy; failure to repair; substandard duty performance; failure to be at appointed place of duty; failure to make company run; failure to be in prescribed uniform; failure to follow instructions; late for motor pool time; and for being absent from duty.  

8.  On 25 February 1992, the applicant accepted NJP under Article 15, UCMJ for being absent from his unit at Fort Campbell, KY from 0630 hours on 3 February 1992 to 1445 hours on 4 February 1992.

9.  On an unknown date, the unit commander notified the applicant of his proposed recommendation to discharge him under the provisions of Army 


Regulation 635-200, chapter 13 for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of separation action, consulted legal counsel, and submitted statements in his own behalf.  His statements are not available.  

10.  The separation authority's approval of separation action is not available.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 26 March 1992 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  At the time of his discharge, he had completed 2 years, 5 months, and 21 days of active military service.

11.  The applicant provided four character references in support of his claim.  The individuals indicated they had known the applicant for several years.  He was described as a dependable, dedicated, hard-working person.  

12.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant's contentions regarding his inability to make it back to his post at Fort Campbell, KY for formation were noted.  However, it was the applicant's responsibility to be at his place of duty at the appointed time and this incident was only one of several which formed the basis for his discharge.

3.  The applicant states that he was not a poor Soldier and does not deserve this type of discharge.  However, his service record shows he received two Article 15s, a bar to reenlistment for DUI, and numerous adverse counseling statements.  Therefore, the applicant's record of service is not sufficiently meritorious to warrant a fully honorable discharge.

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.  

5.  The applicant's character references were noted; however, they are not sufficiently mitigating to warrant relief in this case.

6.  The applicant has failed to show through the evidence submitted or the evidence of record that the characterization of service issued to him was in error or unjust.  Therefore, there is no basis for granting his 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)                                         AR20090004638





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ABCMR Record of Proceedings (cont)                                         AR20090004638



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