IN THE CASE OF:
BOARD DATE: 14 October 2009
DOCKET NUMBER: AR20090009083
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 an upgrade of his general discharge to an honorable discharge.
2. The applicant states that his discharge has not been upgraded since he was discharged 17 years ago. He adds that he graduated from college in June 2009 and an upgrade is required for employment opportunities.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 February 1992, 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 applicants 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 applicants 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 records show he enlisted in the Regular Army for a period of 6 years on 24 January 1991. He completed basic combat and advanced individual training and was awarded military occupational specialty 67T (Tactical Transport Helicopter Repairer). The highest rank/grade he attained during his military service was private (PV2)/E-2. He was assigned to Company D, 5th Battalion, 101st Aviation, Fort Campbell, KY.
3. The applicant's records show he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification badge with Grenade Bar, the National Defense Service Medal, and the Aircraft Crewman Badge.
4. The facts and circumstances surrounding the applicants discharge are not available for review with this case. However, his records contain a properly constituted DD Form 214 that shows he was discharged on 28 February 1992 under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance with a character of service of under honorable conditions (general). This form further confirms he completed 1 year, 1 month, and 5 days of creditable military service.
5. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commanders judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
7. 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 applicants record is void of the facts and circumstances that led to his discharge. However, his record contains a properly constituted DD Form 214 that shows he was discharged on 28 February 1992 under the provisions of chapter 13 of Army Regulation 635-200 for unsatisfactory performance.
2. It appears that the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards. It also appears that his immediate commander initiated separation action against him. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary.
3. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. He did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant the applicant the 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.
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