BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090004910 


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 discharge be upgraded to honorable. 

2.  The applicant states that he was a good Soldier who received all good counseling statements in advanced individual training and at his first permanent duty station until he received an Article 15 for driving under the influence (DUI).  He contends that he overcame the Article 15, that he became "master fitness," and that he continued to receive good statements.  However, his platoon sergeant did not want to recognize his achievement of "master fitness," so he asked to leave the Army.  He points out that he was cited for outstanding services during Hurricane Andrew.   

3.  The applicant provides no additional documentary evidence 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 (RA) on 2 April 1992 for a period of 3 years.  He was awarded military occupational specialty (MOS) 76V (materiel storage and handling specialist) and attained the rank/grade of private first class (PFC)/E-3.  He was awarded the Humanitarian Service Medal for participation in Operation Disaster Relief (Hurricane Andrew).

3.  An undated DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows that nonjudicial punishment was imposed against the applicant for writing bad checks between 21 November 1992 and 18 December 1992.  It appears the applicant was also charged with additional charges and/or specifications; however, the continuation page for this form is not contained in the available records.  His punishment consisted of a reduction to private (PV1)/E-1, forfeiture of $407.00 pay per month for two months (suspended, to be automatically remitted if not vacated before 24 July 1993), and restriction and extra duty for
45 days.  

4.  On 6 January 1993, the applicant received a memorandum of reprimand for misconduct (he was apprehended by civilian police on 30 December 1992 and cited with DUI, failure to yield right of way, and having no license on his person).

5.  Between 3 November 1992 and 17 May 1993, the applicant was counseled on numerous occasions for various infractions which included speeding, driving on post while his driving privileges were suspended, disrespect, disobeying lawful orders, and insubordination.

6.  On 22 June 1993, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander based his recommendation for separation on the applicant's bad checks, disobeying a lawful order, disrespect to a noncommissioned officer, and his civil conviction for DUI.

7.  On 25 June 1993, after consulting with counsel, the applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued and he elected not to submit a statement in his own behalf.

8.  On 25 June 1993, the separation authority approved the recommendation for separation and directed that the applicant be furnished a General Discharge Certificate.

9.  Accordingly, the applicant was discharged with a general, under honorable conditions discharge on 8 July 1993 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 1 year, 3 months, and 7 days of creditable active service.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board (ADRB) for a discharge upgrade within its
15-year statute of limitations.

11.  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.

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, his record of service included a memorandum of reprimand, numerous adverse counseling statements, and one nonjudicial punishment.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.


2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  As a result, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004910



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ABCMR Record of Proceedings (cont)                                         AR20090004910



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