IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090021021 


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 under honorable conditions discharge to honorable.

2.  The applicant states:

	a.  he made a stupid decision at a very young age and has lived with the consequences;

	b.  there is no error or injustice in the discharge he received;

	c.  he used bad judgment when he received his discharge and it was just at the time;

	d.  he was a good Soldier and had high marks in his skill training;

	e.  he did not realize how important the Army truly was until he was separated; and

	f.  he has been married for 17 years, has three children, has never been in trouble with the law, and has been successful in all his endeavors.

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 on 13 February 1990.  After completing basic combat training, he entered training for military occupational specialty 98G (Voice Interceptor) at the Defense Language Institute Foreign Language Center.

3.  The record shows the applicant received numerous counseling statements regarding his academic performance and personal conduct during the period 13 August 1990 to 20 May 1991.

4.  On 11 April 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for violating a lawful general order.

5.  A DA Form 5248-R (Report of Unfavorable Information for Security Determination) shows on 28 May 1991 the applicant's commander stated he was incapable of handling the responsibility of safeguarding secrets and recommended that he not receive a security clearance.  His commander also stated he was a constant disciplinary problem and had been repeatedly counseled concerning uniform violations, failure to follow instructions, misbehaving in class, and general immature activity and decisions.

6.  A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant met retention requirements and was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  On 14 June 1991, the applicant acknowledged receipt of a letter from his immediate commander notifying him he was being recommended for separation 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.

8.  The applicant consulted with legal counsel and was advised of the basis for contemplated separation for unsatisfactory performance and its effects, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions.  He did not submit statements on his behalf and requested consulting counsel.

9.  On 18 June 1991, the separation authority waived the requirement for rehabilitative transfer, approved the applicant's separation, and directed he receive a general discharge.  On 8 July 1991, he was discharged accordingly.  The applicant's DD Form 214 shows separation for unsatisfactory performance in item 28 (Narrative Reason for Separation).

10.  The applicant's DD Form 214 shows his date of birth as 11 January 1971.  

11.  There is no indication the applicant petitioned the Army Discharge Review Board within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his general under honorable conditions discharge to honorable was carefully considered and found not to be 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 nonjudicial punishment and counseling on numerous occasions for his academic performance and personal conduct, 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.

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)                                         AR20090021021



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ABCMR Record of Proceedings (cont)                                         AR20090021021



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