BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007442 


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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was told at the time of his discharge that he could request this upgrade.

3.  The applicant provides a copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2-1 (Personnel Qualification Record), enlistment contract, Report of Mental Status Evaluation, and Report of Medical History in support of this 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 enlisted in the Regular Army on 20 June 1990 in the rank of private first class/E-3.  He completed initial entry training and was awarded military occupational specialty 31L (Wire Systems Installer).

3.  Item 8 (Record of Non-Judicial Punishment) of a Bar to Reenlistment Certificate, dated 25 March 1992, shows he received non-judicial punishment on 9 March 1992 for failure to repair and for disobeying a lawful order and was reduced to the rank of private/E-2.  Item 10 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) of this form further shows he was previously counseled on 7 occasions using DA Form 4856 (General Counseling Form).  These forms which contain his counseling history are not available for review.

4.  A DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) shows he failed the APFT on 3 September 1992 and 17 September 1992.

5.  On 7 October 1992, he was evaluated by the Division Mental Health and was psychiatrically cleared for any administrative action deemed appropriate by his command.  A Report of Medical History, dated 9 October 1992, shows he was found qualified for separation.

6.  On 16 November 1992, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He based his recommendation on the applicant's several APFT failures and his failure to respond to counseling and rehabilitative measures.

7.  The applicant was advised by his unit commander of the proposed separation action for unsatisfactory performance with a General Discharge Certificate.  He was informed that the reason for the proposed action was because he had constantly disregarded his responsibilities as a Soldier by being unable to perform the duties he was trained for and had not shown any attempts to correct his actions as reflected by several counseling statements.

8.  On 18 November 1992, the applicant acknowledged receipt of notification of the proposed separation.  On the same date, he consulted with legal counsel and elected to submit a statement in his own behalf.  The statement is not available for review and there is no indication he actually submitted it prior to separation.

9.  On 22 November 1992, the applicant's intermediate commander recommended approval of the proposed separation action and recommended he received a General Discharge Certificate.

10.  On 22 November 1992, the appropriate authority approved the recommendation and directed he be issued a General Discharge Certificate.  Accordingly, he was discharged with a general, under honorable conditions characterization of service, in the rank of private/E-2, on 9 December 1992.  He completed 2 years, 5 months, and 20 days of creditable active duty service.

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

12.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general, under honorable conditions discharge be upgraded to honorable because he was told he could request this upgrade.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  He consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  While his counseling statements are not available for review, his entire chain of command determined that his overall record of service did not warrant a fully honorable discharge.  He has not provided sufficient evidence to show that his discharge was in error or unjust.

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

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)                                         AR20100007442



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)