BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100009025 


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, in effect, upgrade of his general discharge (GD) to an honorable discharge (HD).

2.  The applicant states the following:

* he fulfilled his obligation to the Army
* he was never disciplined for anything
* he was always at his best
* he was discharged because of an argument

3.  The applicant provides the following documents in support of his application:

* three character reference statements
* memorandum, Subject:  Recognition of Outstanding Performance, dated
2 May 1989

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 record shows he enlisted in the Regular Army (RA) on 1 March 1989.  He was trained in and held military occupational specialty 13E (Cannon Fire Direction Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he attained the rank/grade of private first class (PFC)/E-3 on 1 November 1990.  This was the highest rank/grade he held on active duty.  It also shows he earned the following awards during his active duty service:

* National Defense Service Medal
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on two separate occasions.  It also shows he was formally counseled fourteen times during the period 11 February to 16 July 1991, for a myriad of disciplinary infractions that include:

* failing to obey a lawful order
* being disrespectful towards an officer and noncommissioned officer (NCO)
* wearing an improper field uniform and failing to produce a profile
* failing to be at his appointed place of duty at the appointed time
* being disrespectful
* substandard performance
* being passed over for promotion
* failure to repair

5.  On 12 July 1991, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was flat
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

6.  On 23 July 1991, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The unit commander cited the applicant’s two records of NJP and multiple records of counseling as the basis for the proposed separation action.

7.  On 23 July 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive representation by counsel and to make a statement in his own behalf.

8.  In his statement, the applicant requested a rehabilitative transfer to afford him a second chance to prove that he could perform his job and to adhere to all military standards.

9.  On 5 August 1991, the unit commander requested a waiver of the rehabilitative requirements and indicated the applicant’s further duty would be inappropriate given he had resisted previous rehabilitative attempts.  The commander further stated that rehabilitative measures would not be in the best interest of the Army as it would not produce a quality Soldier.

10.  On 5 August 1991, the separation authority approved the applicant's separation and directed he receive a GD.  He also waived further counseling and rehabilitation requirements.  On 20 August 1991, the applicant was discharged accordingly.

11.  The applicant provides three character references from individuals who indicate he is trustworthy, a great worker with ethics, eager to learn, responsible, a great friend, and dependable and conscientious.  He also provides a memorandum in which his commander at that time recognized him for his outstanding performance during basic combat training.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded to an HD.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant 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.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge, did not support the issuance of an HD by the separation authority at the time, and does not support an upgrade of his discharge now.

4.  In view of the forgoing, there is no basis for granting the applicant’s requested relief.

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)                                         AR20100009025



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)