IN THE CASE OF:	  

		BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090005226 


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 be upgraded to honorable. 

2.  The applicant states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) states that he was released for unsatisfactory performance, but his commander stated that this was what he could come up with in order for him to be released.  The battalion commander asked the troops if anyone wanted to get out of the Army because of government cutbacks and he requested to be released due to his mother's health condition at the time.  He was told he was being released because he requested to get out of the Army because of government cutbacks.  He realizes that he was not the most outstanding Soldier, but he doesn't like it shown that unsatisfactory performance was the reason for his discharge.  All he respectfully requests is that his discharge be changed to honorable; the reason for the discharge can stay the same.

3.  The applicant provides no additional documentation 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 records show he enlisted in the Regular Army (RA), in pay grade E-1, on 28 June 1990, for 4 years.  He completed training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was advanced to pay grade E-2 on 28 December 1990, which is the highest grade he held during his tenure of service.

3.  On 25 April 1991, the applicant was counseled by his platoon sergeant pertaining to basic integration and physical training (PT) test and weigh-in scheduled for the third week of May 1991.  He was advised that if he failed the Army Physical Fitness Test (APFT), paperwork would be processed to have him flagged.  He would be tested a second time after a sufficient training period.  If he failed the second test he would be recommended for separation from the Army.  He was responsible for keeping himself in shape at all times.

4.  On 25 April 1991, the applicant also received his quarterly counseling from his platoon sergeant.  He was advised that his performance during preparing for redeployment back to the United States was of the highest quality.  

5.  On 10 July 1991, the applicant was counseled by his platoon sergeant for disobeying a lawful order and lying to a noncommissioned officer.

6.  On 25 July 1991, the applicant was counseled by his platoon sergeant for failing the APFT.  He was advised that he had been counseled and coached many times on how to improve his physical strength and the end results of continually failing his APFT.  He was also advised that the Army was trimming its forces and only wanted to keep the best.  The platoon sergeant further stated the applicant's inability to attain a passing score on his last three APFTs led him to believe that the applicant was not among the best and therefore he was recommending him for separation from the Army.

7.  On 25 July 1991, the applicant was also counseled by his platoon sergeant for failing to qualify with his assigned weapon.  He was advised that he would undergo further training and be sent to the range again for qualification.

8.  On 10 December 1991, the applicant was counseled by his company commander pertaining to failing the APFT on 9 December 1991.  The company commander had advised the applicant that after his 8 August 1991 APFT failure, if he did not improve his performance on the AFPT he would be chaptered out of the Army.  The company commander further remarked that based on the applicant's 9 December 1991 failure he was initiating discharge proceedings under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 by reason of unsatisfactory performance.  On the same date, the applicant acknowledged receipt of this counseling.

9.  On the same date, the applicant's company commander officially notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He stated that he was recommending this action based on the applicant's failure of the AFPT, his failure to be at the time prescribed at his appointed place of duty, and his record of writing dishonored checks and failing to maintain sufficient funds in his bank account to pay such checks.  He recommended the applicant receive a general, under honorable conditions discharge.

10.  On 11 December 1991, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He acknowledged that he understood that he might be issued a general, under honorable conditions discharge and the effects of the issuance of this type of discharge.  

11.  On 11 December 1991, the applicant's battalion commander recommended approval of the proposed separation.  He stated that the applicant had demonstrated that he had no potential to become a productive Soldier.  He had demonstrated an unwillingness to conform to current Army standards.  He recommended the applicant be separated with a general, under honorable conditions discharge.

12.  On 12 December 1991, the appropriate authority approved the applicant's separation and directed the issuance of a General Discharge Certificate.  

13.  The applicant was discharged on 18 December 1991, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His character of service was characterized as under honorable conditions (general).  He was credited with 1 year, 5 months, and 21 days of total active service.

14.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within its 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, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or general, under honorable conditions, as warranted by their military records.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general, under honorable conditions discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant's contentions have been noted; however, the applicant’s records show he received several counseling pertaining to failing to pass the AFPT.  During his counseling, he was advised that his continued failure could lead to his separation for unsatisfactory performance.  At the time separation action was initiated, he acknowledged that he might be issued a general discharge under honorable conditions.  After approval of his separation, he acknowledged the reason for his separation and the issuance of a general, under honorable conditions discharge.  

3.  The evidence of record confirms the applicant’s release from active duty processing was accomplished in accordance with applicable regulations and the 
type of discharge directed and the reasons were appropriate, considering all the facts of the case.  The applicant's repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.

4.  In view of the foregoing, 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)                                         AR20090005226



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ABCMR Record of Proceedings (cont)                                         AR20090005226



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