BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090007758 


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 he suffers from depression, anxiety, and panic attacks.  He contends that he was not properly screened.  He states that he has had a mental disorder and he thought he could overcome it.  He also has chronic physical disabilities dealing with his shoulder, back, knees, and food poisoning.  He claims he was not properly screened for his mental disorder and he needs help for his conditions.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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 23 July 1990.  His highest grade attained was private, E-1.

3.  On four separate occasions between December 1990 and February 1991, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty and disobeying a lawful order.

4.  On various occasions between December 1990 and February 1991, the applicant received numerous adverse counseling statements regarding the following:  disobeying a direct order, misconduct and substandard performance, violating policies, missing formation, violating a lawful order, being absent from the battery area, and failing to return from a pass on time.

5.  On 19 February 1991, the unit commander notified the applicant of his proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of the separation action, consulted legal counsel, and submitted statements in his own behalf.  He gave a description of his entry on active duty.  He stated he became frustrated with the Army after advanced individual training and did not understand why he became a holdover.  He admitted it was his fault that he did not have a clearance, but he put most of the blame on the Army.  He expressed that if he could not get a clearance he would be better off back at home working.  The applicant stated that he deserved an honorable discharge because he had been a Soldier all of his life and would continue to be one.

6.  On 28 February 1991, the separation authority waived rehabilitation and directed separation with a general discharge.

7.  Accordingly, the applicant was discharged from active duty on 4 March 1991 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 7 months and 12 days of active military service with no days of lost time.

8.  On 3 June 1993, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  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 would 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 would be characterized as honorable or under honorable conditions.

10.  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 contention that he suffers from depression, anxiety, panic attacks, and food poisoning was noted.  However, there is no evidence of record which indicates the applicant suffered from these conditions during his tenure on active duty or that these conditions led to his discharge from the Army.

3.  The applicant also contends that he was not properly screened.  However, there is insufficient evidence on which to support his claim.

4.  The applicant's service record shows he received nonjudicial punishment under Article 15 four times, and numerous adverse counseling statements.

5.  Although he may now feel that his general under honorable conditions discharge should be upgraded, his service does not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge in accordance with Army Regulation 635-200.  



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)                                         AR20090007758



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ABCMR Record of Proceedings (cont)                                         AR20090007758



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