BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090019453 


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 general discharge to an honorable discharge.

2.  The applicant states he was informed he could upgrade his discharge.  He states he has been employed by the same employer for the past 10 years and he holds a secret clearance.

3.  The applicant provides no additional evidence 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 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 personnel records show he enlisted in the Regular Army on 22 July 1981 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 98C (Electronic Warfare/Signal Intelligence Analyst).

3.  The applicant was assigned in Germany from 7 January 1983 to
29 December 1986.  He was promoted to sergeant (SGT)/E-5 on 21 July 1983.

4.  On 23 January 1987, the applicant was assigned to the 104th Military Intelligence Battalion at Fort Carson, CO.

5.  The applicant received formal counseling on:

* 20 May 1987 - for failure to show progress on the Physical Development Program
* 10 July 1987 - for failure to show progress on the Physical Development Program
* 20 May - 13 July 1987 - numerous counseling on physical fitness and appearance
* 13 July 1987 - he was advised he could be eliminated from the service with an honorable, a general, or an under other than honorable conditions discharge
* 13 July 1987 - for his substandard appearance

6.  On 17 August 1987, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

7.  On 27 August 1987, the applicant's commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2 for unsatisfactory performance.  The commander stated the proposed action was being taken due to the applicant's unsatisfactory performance consisting of failing to pass his Army Physical Fitness Tests and failing to qualify with a military weapon.

8.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* 
request consideration of his case by a board of officers 
* representation before a board of officers
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

The commander further advised the applicant he was being recommended for a general discharge.  

9.  On 27 August 1987, the applicant submitted a statement acknowledging that he had been afforded and he declined the opportunity to consult with counsel prior to making his elections.  He elected to:

* waive consideration of his case by a board of officers and a personal appearance before such a board
* not submit statements in his own behalf

10.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood:

* there is no automatic upgrading of any type of discharge 
* he would be ineligible to apply for enlistment in the Army for 2 years after discharge
* he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there is no implication his discharge would be upgraded

11.  On 27 August 1987, the applicant's commander recommended him for discharge due to unsatisfactory performance.  The commander's specific reasons for the recommendation for discharge was the applicant's unsatisfactory performance consisting of failing to pass his Army Physical Fitness Tests and failing to qualify with a military weapon.

12.  On 27 August 1987, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13, and directed that the applicant’s service be characterized as general under honorable conditions and that he be issued a General Discharge Certificate.

13.  On 14 September 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He 

had completed 6 years, 1 month, and 23 days of active service that was characterized as under honorable conditions.

14.  There is no indication that the applicant applied to the ADRB for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

16.  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 general discharge should be upgraded to an honorable discharge.  He contends he was informed he could upgrade his discharge.

2.  At the time the applicant made his elections of his rights, he also acknowledged he could apply for an upgrade to his discharge to the ADRB or the ABCMR.  However, his application would not imply an upgrade would be granted.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting change in discharge.  

3.  The applicant's statement concerning his employment was noted.  However, good post-service conduct alone is not sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's entire record of service was considered.  In promoting the applicant to SGT/E-5, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As an SGT, the applicant was in a position of trust and responsibility, and he was responsible for providing a good example to those assigned under him.  By his consistent failure to respond to the counseling he received and his failure to qualify with his weapon, he violated this special trust and confidence.

5.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

6.  In view of the above, there is insufficient basis to upgrade the applicant's discharge.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090019453



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ABCMR Record of Proceedings (cont)                                         AR20090019453



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