IN THE CASE OF:	

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012539 


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 upgrade of her general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that she was a Soldier in the Army from June 1984 through December 1985.  She was discharged for undesirable reasons.  She was informed that her discharge could be upgraded at least 2 years after her discharge from the Army.  She also states, in effect, she would like her discharge upgraded so she can receive Department of Veterans Affairs (VA) benefits.

3.  The applicant provides no additional documentation in support of her 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 she enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 25 January 1985.  She was discharged from the USAR DEP on 2 June 1985 and she enlisted in the Regular Army (RA) on 3 June 1985 in the rank/grade of private first class (PFC)/E-3.  She completed training and she was awarded military occupational specialty (MOS) 92B (medical laboratory specialist).  She was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 June 1986.

3.  On 8 August 1986, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to repair on 24 July 1986; and for failure report and for failure to obey an order on 2 and 
3 August 1986.  Her punishment included reduction to pay grade E-3 and 14 days extra duty and restriction.  She did not appeal the punishment.  She was reduced to pay grade E-3 on 8 August 1986.

4.  On 22 September 1986, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  She acknowledged that she had less than 6 years of total active service and was therefore not entitled to have her case heard by an administrative separation board.  She also acknowledged that she understood that she might be issued a general, under honorable conditions discharge and that she was ineligible to apply for enlistment in the Army for a period of 2 years after discharge.  She further acknowledged that she may apply for an upgrade to the Army Discharge Review Board (ADRB) and this Board; however, an act of consideration by either board did not imply that her discharge would be upgraded.  She elected to submit a statement in her own behalf.

5.  In her statement, the applicant stated that the need for discipline, understanding, compassion, and sincerity was imperative in today’s Army.  She felt that she was strong enough to offer those characteristics.  She had a capacity for leadership not only for the individual Solider, but also for the welfare of the Army.  In effect, when she first arrived at the 763rd Medical Detachment, a drastic change in the environment coupled with Soldiers 10 to 15 years younger than she contributed to a misunderstanding between herself and several individuals in the unit.  That kind of stress caused her to make illogical decisions, such as failing to appear at her place of duty while on a 14-day restriction.  She has learned from her mistakes and felt her capacity for positive influence far outweighed past negative mistakes.

6.  On 23 September 1986, the applicant was notified of her unit commander’s intent to initiate action to effect her discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 

paragraph 13-2, by reason of unsatisfactory performance due to her unsatisfactory duty performance and disruptive influence in the unit.  The commander stated, in effect, that she had been counseled repeatedly for failure to perform her primary job, failure to show proper respect to those of higher rank, and a lack of motivation.  Her lack of motivation was especially brought out by the incident in which she lost her protective mask.  The commander also stated that she not only failed to tell anyone of the loss, but when told she would have to pay for it she did not bother to look for the mask on her own, but rather was led by her squad leader to places it may have been lost.  The commander further stated that the applicant’s repeated unsatisfactory actions, failure to adapt, and failure to perform her primary job despite much time and effort led him to conclude that she should be separated from the Army.

7.  On 24 September 1986, the applicant's unit commander recommended she be discharged under the provisions of Army Regulation 635-200, chapter 13.  The unit commander stated, in effect, that numerous counseling statements had been written since the applicant’s arrival in the unit.  She failed to complete her first advanced individual training (AIT) in journalism because of failing marks.  She has had great difficulty since her arrival performing the simplest of laboratory functions to include centrifugation and making a buffer, the first steps in their complicated procedure.  That difficulty continued despite numerous attempts at corrective training lasting several weeks.  The applicant had great difficulty performing routine lab procedures that she should have learned in AIT, despite much individual effort to assist her.  The unit commander also stated, in effect, the applicant was unable to adjust to military service, often questioned orders, and failed to adhere to an extra training schedule.

8.  On 18 November 1986, the appropriate authority approved the applicant's discharge and specified the issuance of a General Discharge Certificate.

9.  The applicant was discharged from active duty in pay grade E-3 on 17 December 1986, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  She received a character of service of general, under honorable conditions.  She was credited with 1 year, 6 months, and 15 days of net active service.

10.  There is no evidence that the applicant applied to the ADRB within its
15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, 

to include separation for those individuals who failed to maintain Army physical standards.  Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions as warranted by their military records.

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

2.  The applicant's contentions have been noted; however, her records show she received numerous negative counseling statements pertaining to her duty performance, lack of respect, and lack of motivation.  She was punished under Article 15, UCMJ, resulting in her reduction in grade.  The applicant's commander stated that her repeated unsatisfactory actions, failure to adapt, and failure to perform her primary job despite much time and effort led him to conclude that she should be separated from the Army.

3.  The applicant also has provided no evidence to show that her discharge was unfair or unjust.  The applicant's repeated unsatisfactory performance diminished the quality of her service below that meriting a fully honorable discharge.  The evidence of record confirms her discharge from active duty processing was accomplished in accordance with applicable regulations and the characterization of her service and the reasons therefore were appropriate, considering all the facts of the case.

4.  The applicant desires to have her general discharge upgraded so that she can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations.  However, the ABCMR does not grant relief solely for the purpose of making an applicant eligible for benefits administered by these agencies.  Every case is individually decided based upon its merits when an applicant requests an upgrade of his or her discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090012539



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ABCMR Record of Proceedings (cont)                                         AR20090012539


   
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