IN THE CASE OF:	  

		BOARD DATE:	    12 January 2010

		DOCKET NUMBER:  AR20090013688 


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 her general discharge to fully honorable.

2.  The applicant states that the discharge was based on one incident over a 
3-year period. 

3.  The applicant did not provide any additional documentary evidence.

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 for a period of 4 years on 
13 October 1988.  She completed basic combat and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).  The highest rank/grade she attained during her military service was specialist/
E-4.

3.  The applicant's records show she served in Germany from on or about 
18 March 1989 to 7 September 1990.  Her records also show she was awarded the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records reveal multiple performance, personal, and disciplinary counseling statements, on various dates, that included failure to go to her appointed place of duty at the prescribed time, coming in late to work, leaving work early, taking extended breaks and long lunch hours, failure to repair, failure to notify the chain of command of her whereabouts, apathy, failure to pay just debt, and failing an Army Physical Fitness Test (APFT) (twice).

5.  On 1 October 1991, the applicant’s immediate commander notified the applicant of her (the commander's) intent to initiate separation action against her (the applicant) in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  Specifically the immediate commander cited the applicant's lateness to work, letters of indebtedness, and APFT failures.  The immediate commander recommended issuance of a General Discharge Certificate.

6.  On 1 October 1991, the applicant acknowledged receipt of the commander's intent to separate her and on 3 October 1991 she consulted with legal counsel.  The applicant was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge she could receive and its effect on further enlistment or reenlistment, and of the procedures/rights that were available to her.  She further acknowledged that she understood that she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant declined to make a statement in her own behalf.

7.  The applicant’s immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander cited the applicant’s previous tardiness, indebtedness, and APFT failures. 

8.  On 4 October 1991, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the applicant's service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged on 18 October 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she was discharged with a characterization of service of under honorable conditions (general).  This form further confirms she completed a total of 3 years and 6 days of creditable military service.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

10.  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 commander’s judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  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 contends that her discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by her chain of command regarding her responsibility to meet Army standards.  Accordingly, her immediate commander initiated separation action against her.  Her administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects her overall record of service.


3.  Contrary to her contention that her discharge was based on one incident during over a 3-year period, the evidence of records shows the applicant received multiple counseling statements from various members of her chain of command on different dates for several infractions. 

4.  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.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant her an upgrade of her discharge.

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)                                         AR20090013688



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ABCMR Record of Proceedings (cont)                                         AR20090013688



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