BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010101 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* The military stated he did not perform even though he was in over 5 years
* Upon his discharge the military found out he had asthma
* He never had asthma before he went in the military
* He believes his length of service and his disability (that he did not know he had) should have been taken into consideration 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 11 January 1984 for a period of 
3 years.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 67V (observation scout helicopter repairer).  On 3 December 1986, he was honorably discharged for immediate reenlistment.  He reenlisted on 4 December 1986 for a period of 3 years.  He attained the rank of sergeant on 9 August 1987. 

3.  On 8 February 1989, the applicant was counseled for failing the Army Physical Fitness Test (APFT) on 2 February 1989.

4.  On 11 April 1989, the applicant was counseled for failing the APFT on 
15 February 1989.

5.  On 11 April 1989, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His unit commander cited the applicant's failure of 4 APFTs 
(15 February 1989, 2 February 1989, 28 December 1988, and 11 May 1988).

6.  On 11 April 1989, the applicant waived his right to consult with counsel and acknowledged notification of his pending separation.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.  

7.  On 17 April 1989, the applicant underwent a separation physical examination and was found qualified for separation.  He reported he was in "good condition" on his Standard Form 93 (Report of Medical History), dated 17 April 1989, and in item 11 (Have you ever had or have you now) on this form the applicant marked "No" to asthma.  His Standard Form 88 (Report of Medical Examination) shows his nose, sinuses, and lungs and chest were "normal."

8.  On 27 April 1989, nonjudicial punishment was imposed against the applicant for failure to repair and disobeying a lawful order.  His punishment consisted of a reduction to E-4.

9.  On 3 May 1989, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    


10.  Accordingly, the applicant was discharged with a general discharge on 
23 June 1989 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served a total of 5 years, 5 months, and 
13 days of creditable active service.  

11.  There is no evidence of record which shows the applicant was diagnosed with asthma prior to his discharge on 23 June 1989.

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

13.  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, 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.

14.  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.  Although the applicant contends he was diagnosed with asthma upon his discharge, there is no evidence of record and the applicant provided no evidence to support this contention.  He was found qualified for separation on 17 April 1989.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  The applicant's entire record of service was carefully considered.  However, his record of service during his last enlistment included one nonjudicial punishment and 4 APFT failures.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100010101





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ABCMR Record of Proceedings (cont)                                         AR20100010101



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