IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100011908


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 under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

	a.  he was given a GD because he departed absent without leave (AWOL) for a few days and after he got his family feelings in check, he returned to duty on his own;

	b.  he never had a concern of not being where he was supposed to be subsequent to his first period of AWOL;

	c.  he was given a GD because, having been in a very tense situation while deployed to Saudi Arabia, he panicked out of fear and took an overdose of Tylenol; and

	d.  once his stomach was pumped, he realized he could have killed himself and performed very well as evidenced by the Army Commendation Medal he received.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* seven certificates
* two letters of achievement and/or commendation
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 on 23 May 1989.  He was trained in and served in military occupational specialty 31V (Unit Level Communications Maintainer).

3.  On 31 January 1990, the unit commander issued the applicant a letter of reprimand for his misconduct and sub-standard performance since his assignment to that unit on 26 November 1989.  The commander also initiated a bar to reenlistment against the applicant subject to removal with the applicant's positive favorable actions.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank of private/E-2 on 23 November 1989 and this was the highest rank he attained while serving on active duty.  It also shows he was reduced to the rank of private/E-1 on 2 October 1990.

5.  Item 5 (Oversea Service) of the applicant's DA Form 2-1 confirms the applicant completed 7 months of service in Saudi Arabia from 15 September 1990 to 9 April 1991.  His record includes an Army Commendation Medal certificate which shows it was awarded to the applicant for meritorious service during combat operations against an enemy from 24-28 February 1991.

6.  The applicant's record shows he thrice accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the reasons indicated:

* 31 January 1990 - being AWOL for 6 days from 19-24 January 1990
* 10 July 1990 - allowing an underage Soldier to consume alcoholic beverages
* undated - intentionally taking an overdose of Tylenol to avoid service
7.  The applicant's record shows he was formally counseled on four separate occasions during the period 25 June 1990 to 4 June 1991 for the following infractions:

* being in the presence of a minor Soldier while he was drinking and for being involved in fight while under the influence of alcohol
* failing to report to his prescribed place of duty
* failing to make his bunk
* misconduct and unsatisfactory duty performance

8.  The applicant underwent a mental status evaluation based on being processed for separation that resulted in the following findings by the examiner:  

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

9.  The examining psychologist further indicated the applicant did not possess the essential emotional and characterological strengths necessary to be a continuously effective Soldier.  He also stated that continued retention would place the applicant at risk for self-destructive behavior and strongly recommended that he be administratively separated from the service.

10.  The unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance.  The unit commander indicated that since the applicant's assignment to the unit he proved he was not worthy to remain in the service of his country.  He also cited the applicant's one summarized and two field grade records of NJP for procuring alcoholic beverages for a minor, AWOL, and attempted suicide while deployed to Saudi Arabia during Operation Desert Shield as the basis for the proposed separation action and recommended that he receive an HD or a GD.

11.  On 11 July 1992, the applicant consulted with legal counsel and 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.

12.  On 18 July 1991, the separation authority approved the applicant's separation.  He also waived further rehabilitation requirements and directed that the applicant be issued a GD Certificate.

13.  On 24 July 1991, the applicant was discharged under honorable conditions.  He completed 2 years, 1 month, and 26 days of creditable active service.  The DD Form 214 confirms the narrative reason for his separation was "unsatisfactory performance."

14.  On 20 December 1996, after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for the 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 would be characterized as honorable or under honorable conditions.

16.  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.  Further, the record includes a letter of reprimand and three records of NJP for procuring alcoholic beverages for a minor, AWOL, and attempted suicide while deployed.  Clearly, the applicant's misconduct 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 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)                                         AR20100011908



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ABCMR Record of Proceedings (cont)                                         AR20100011908



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