IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090019040 


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 his discharge to honorable, award of a combat service medal, and change of his reason for separation to satisfactory.

2.  The applicant states the following:

	a.  He served in an artillery unit in Kuwait during the Gulf War.

	b.  The reason for his separation should have been based on completion of active duty time, not on a personality conflict.

	c.  He completed his time and mission faithfully.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 and entered active duty on 21 September 1990.  He was trained in and awarded military occupational specialty 13B (Cannon Crewmember).

3.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment (NJP) on 4 February 1992 for being drunk and disorderly.  His punishment was a reduction to E-2 (suspended), forfeiture of $205.00 per month for 1 month, and extra duty for 14 days.

4.  A DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) shows the suspension of reduction to E-2 was vacated as a result of the applicant using disrespectful language toward a noncommissioned officer.

5.  A DA Form 2627 shows the applicant accepted NJP on 28 August 1992 for failing to go to his place of duty.

6.  On 20 October 1992, the applicant acknowledged receipt of a letter from his immediate commander notifying him of a pending discharge action against him for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and that he was being recommended for a general discharge.

7.  The record shows the separation authority approved the applicant's separation, directed he receive a General Discharge Certificate, and directed his transfer to the Individual Ready Reserve.  On 23 November 1992, he was released from active duty accordingly.  The applicant's DD Form 214 shows separation for unsatisfactory performance in item 28 (Narrative Reason for Separation).

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  The record is void of documentation showing the applicant served in Kuwait in support of the Gulf War or that he was involved in combat activities during his military service.

10.  The Defense Manpower Data Center compiled the Desert Shield/Storm Data Base.  The primary Desert Shield/Storm file contains one record for each active duty member who participated in-theater between 2 August 1990 and 31 July 1991 and one record for each Reserve/National Guard member or retiree who was activated or federalized in response to Desert Shield/Desert Storm.  A Phase II file lists active duty personnel who served in-theater between 1 August 1991 and 31 December 1993.  There are also separate files covering calendar years 1994 and 1995.

11.  The applicant's name is not listed on the Desert Shield/Storm Data Base.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

13.  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.

14.  Army Regulation 600-8-22 (Military Awards) provides that service in support of the Gulf War in designated areas may be recognized with several awards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for upgrade of his discharge to honorable, change of his reason for separation, and award of a combat service medal were carefully considered and not supported by the evidence in this case.

2.  The applicant's separation for unsatisfactory performance was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline which includes two NJP's and vacation of a suspended NJP punishment, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an honorable discharge.  Therefore, he is not entitled to an honorable discharge.

4.  There is no evidence in the available records showing the narrative reason for the applicant's separation is incorrect.  In the absence of such evidence, he is not entitled to have his record corrected to change the narrative reason for separation.

5.  There is no evidence in the available records showing the applicant served in Kuwait in support of the Gulf War or participated in any combat activity during his military service.  In the absence of such evidence, there is no basis to grant the relief requested.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20090019040



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