IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100001095 


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 at the time of his discharge he requested a rehabilitation transfer that never occurred.  He further states he was told by his command that he would receive an honorable discharge.  The applicant states many years have passed since his discharge and he has continued to serve the U.S. Government as a civil service firefighter.  He is attempting to gain civil service employment overseas and an honorable discharge would help him in selection for a position.

3.  The applicant provides no additional documentation in support of this case.

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 had prior service in the Army National Guard.  He enlisted in the Regular Army on 8 July 1990 and successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

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

* 21 July 1991 for failure to be at appointed place of duty
* 22 July 1991 for parking his private owned vehicle in a no parking zone
* 2 August 1991 for failure to follow guidance from squad leader
* 12 August 1991 for failure to repair
* 14 August 1991 for missing formation
* 9 October 1991 for poor performance
* 10 October 1991 for failing to stay within the battalion 12 mile road march and displaying a threatening action towards a noncommissioned officer (NCO)
* 6 February 1992 for missing formation
* 21 February 1992 for standards of his appearance
* 24 February 1992 for missing formation

4.  On 21 February 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failure to be at his appointed place of duty and for making a false official statement.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), approved on 
21 February 1992, indicates the applicant was barred from reenlistment for receiving an Article 15 for failure to be at his appointed place of duty and for making a false official statement.

6.  Evidence of record show the applicant was absent without leave (AWOL) for the period 8 May 1992 through 28 May 1992.

7.  On 17 June 1992, 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 received an Article 15 and received numerous counseling statements.  The commander further indicated that a rehabilitative transfer would not produce the quality Soldier desired by the Army.


8.  On 18 June 1992, 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.

9.  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 1 July 1992, the applicant separated from the service after completing 1 year, 9 months, and 24 days of creditable active service with 20 days of lost time due to being AWOL.

10.  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.

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 he would like to have his discharge upgraded to be eligible for civil service employment overseas.  However, the ABCMR does not correct records solely for the purpose of obtaining employment.

2.  Although the applicant contends he requested a rehabilitative transfer during his separation proceedings, evidence of record shows his commander recommended to waive rehabilitative transfer based on the applicant's unsatisfactory performance and that a rehabilitative transfer would not produce the quality Soldier desired by the Army.  The recommendation was approved by the appropriate authority and he directed the applicant receive a general under honorable conditions discharge. 
3.  The applicant contends his command told him that he would receive an honorable discharge.  There is no evidence in the available records and the applicant has not provided evidence that shows he was told he would receive honorable discharge.  Therefore, there is no basis for this argument.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize her rights.

5.  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.

6.  The applicant's records show that he received one Article 15, had numerous negative counselings, and had one instance of AWOL.  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 issuance of 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)                                         AR20100001095





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)