IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018529


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received an honorable discharge.

2.  The applicant states:

* he received the wrong discharge from the beginning
* he should have received a general discharge, which has been upgraded to an honorable discharge
* he was given an amendment paper in March 1992
* he lost the amendment paper and he requested another DD Form 214
* he was issued another DD Form 214; however it still states that his discharge was under other than honorable conditions
* the Department of Labor (DOL) is not recognizing him as a veteran and he has lost out on various job opportunities
* he received his Honorable Discharge Certificate in the mail a couple of years ago, which means his general discharge had to have been upgraded
* the DOL call his Honorable Discharge Certificate a “wall hanger” and they say it does not have merit like his DD Form 214
* he needs to know why he cannot be given a DD Form 214 with the proper corrections



* he has been trying to get a DD Form 215 (Correction to DD Form 214) for almost 1 year
* the chances of getting a better job improves dramatically with the proper corrections made to his discharge papers

3.  The applicant provides an undated self-authored letter, a copy of his approval for discharge, and a copy of his DD Form 214.

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.  On 17 July 1989, the applicant enlisted in the Regular Army for 4 years.  He completed training as a field artillery surveyor.

3.  On 13 January 1992, he was notified that he was being recommended for discharge from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His commander cited the following as the basis for his recommendation:

* failure to pass the Army Physical Fitness Test (APFT) since August 1991
* a bar to reenlistment as a result of his failure to pass the APFT
* failure to make process in the unit’s weight control program

4.  In the notification, he was told his lack of motivation or concern demonstrated to his command that he was not willing to be the best he could be and he should not be retained in the Army.  He was also told that he was being recommended for a general under honorable conditions discharge.

5.  On 10 February 1992, the applicant’s battalion commander recommended approval of the discharge action with issuance of an Honorable Discharge Certificate.

6.  On 11 February 1992, the separation authority approved the recommendation for discharge and directed the issuance of an Honorable Discharge Certificate.  He also indicated the applicant would be transferred to the Individual Ready Reserve (IRR).

7.  On 11 July 1992, the applicant was discharged due to unsatisfactory performance.  The DD Form 214 he received shows his character of service as under other than honorable conditions, that he completed 2 years, 7 months, and 22 days of net active service this period, and that he was transferred to the U.S Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

8.  There is no evidence in the available record showing that the applicant was ever issued a DD Form 215 to correct his DD Form 214 to show his character of his service as honorable or under honorable conditions (general).

9.  The self-authored letter that he submits provides his version of what happened in his case, with regard to the character of his service shown on his DD Form 214.

10.  Army Regulation 635-200 (Personnel Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, it is reasonable to presume that an error was made during the preparation of his DD Form 214, which resulted in the incorrect character of service being reflected therein.

2.  Although the applicant was informed in his discharge notification that he was being recommended for discharge with the issuance of a general under honorable conditions discharge, his records clearly show the intermediate commander recommended issuance of an honorable discharge and the separation authority subsequently approved the discharge action and directed the issuance of an Honorable Discharge Certificate.

3.  In view of the foregoing, the applicant should be issued a new DD Form 214 to show his character of his service as honorable.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* voiding his DD Form 214 for the period ending 2 March 1992
* issuing him a new DD Form 214 for the period 11 July 1989 through
2 March 1992, showing his character of service as honorable



      __________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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100018529



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