BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090006622 


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 a fully honorable discharge.

2.  The applicant states that during his discharge he was going through a separation with his wife while serving a tour overseas and due to the fact that he wrote his State Senator for assistance, he was pressured out of the service.  However, he was under the impression that a discharge under honorable conditions still entitled him to all of his benefits. 

3.  The applicant provides no additional documents with 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 in Montgomery, Alabama on 5 January 1989 for a period of 3 years and 14 weeks and training as an infantryman.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and was transferred to Alaska on 20 April 1989.  He was advanced to the pay grade of E-3 on 5 January 1990.

3.  On 11 January 1990, the applicant was congratulated and counseled by his platoon leader ( a first lieutenant) regarding his decision to get married.  He was also counseled regarding the responsibilities that go with being a husband and a father, such as financial responsibilities and the financial difficulties he could expect to encounter by taking on such additional responsibilities.  The applicant was married on 24 January 1990.

4.  On 17 August 1990, the applicant was counseled by his platoon sergeant    (E-7) regarding his being granted a personal leave to go back to Alaska from the Sinai to get his personal affairs in order.  He was advised that it was his responsibility to ensure that he returned back to his unit on time and further advised that it was at his own expense.

5.  On 7 November 1990, while deployed to Sinai, Egypt with his unit, nonjudicial punishment was imposed against the applicant for being disrespectful in deportment towards a command sergeant major, for ripping the sign off the first sergeant's door, and for kicking and damaging the first sergeant's desk.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

6.  On 8 November 1990, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He also advised the applicant that he was recommending that he be issued a General Discharge Certificate.  On 26 November 1990, the applicant underwent a mental status evaluation and was cleared for any action deemed appropriate.  The applicant waived all of his rights and elected not to submit matters in his own behalf.

7.  A review of the applicant's monthly counseling statements indicate that the applicant was repeatedly counseled in regards to his poor attitude.

8.  The appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 17 January 1991, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 2 years and 13 days of total active service.

10.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate.

12.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.  

13.  Paragraph 3-7b also provides that a general discharge 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’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service during such a short period of service.  His service simply does not rise to the level of a fully honorable discharge. 

4.  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 this 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)                                         AR20090006622





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ABCMR Record of Proceedings (cont)                                         AR20090006622



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