IN THE CASE OF:	 

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017616 


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 discharge be upgraded from general under honorable conditions to an honorable discharge.

2.  The applicant states that his unsatisfactory performance discharge was the direct result of broken bones in his right foot that prevented him from performing his duties as infantryman.

3.  The applicant provides

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 28 September 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 July 1991
* Standard Form 600 (Chronological Record of Medical Care) with entries for 14 March 1991 through 1 April 1991
* three DA Forms 5181-R (Screening Note of Acute Medical Care) dated 12 April 1991, 29 April 1991, and 8 May 1991

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 24 August 1990 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).

3.  The applicant provided medical documents that show his right foot was placed in a cast in March 1991 due to a stress fracture and in April 1991 the cast was removed.

4.  On 9 April 1991, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongful use of cocaine.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates

* 21 February 1991 for failure to be at first formation
* 7 March 1991 for testing positive for cocaine on a urinalysis test
* 25 March 1991 for failure to meet his financial obligation
* 2 April 1991 for failure of a polygraph test
* 17 April for failure to report to battalion extra duty
* 19 April 1991 for failure to meet his financial obligation and for failure to report to battalion extra duty
* 25 April 1991 for leaving charge of quarters duty without permission
* 26 April 1991 for disobeying a lawful order and poor performance
* 9 May 1991 for failure to clean his personal area and for disobeying a lawful order

6.  On 5 June 1991, the applicant's commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  The reason cited by the commander was the applicant's unsatisfactory performance, inability to adapt to the military, and minor disciplinary infractions.

7.  On 5 June 1991, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant requested counsel and elected not to submit a statement on his own behalf.

8.  The appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  On 2 July 1991, the applicant separated from the service after completing 10 months and 9 days of creditable active service with no days lost.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

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 contends his unsatisfactory discharge was the direct result of broken bones in his right foot that prevented him from performing his duties as infantryman.  However, there is no evidence that shows his injury was the cause of his problems while serving in the military or excused his behavior.  The applicant had ample opportunity to address the issue during the course of his separation process and elected not to submit a statement on his own behalf.  Therefore, there is an insufficient basis to support this argument.

2.  The applicant's records show that he received one Article 15 for wrongful use of cocaine and he had numerous general counseling statements.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.

3.  The applicant's characterization of service is commensurate with his overall record of military service.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the above, there is no basis for granting the applicant's 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.

ABCMR Record of Proceedings (cont)                                         AR20090017616



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ABCMR Record of Proceedings (cont)                                         AR20090017616



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