IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100019546 


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

2.  The applicant states he served faithfully and honorably in Kuwait during the Persian Gulf War.  His inability to pass the Army Physical Fitness Test (APFT) at his permanent duty station did not adversely affect his duties as a combat engineer. He believes his service as reflected by his awards warrants a full HD.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 served in the Regular Army from 10 April 1990 through 19 May 1992 with prior service in the Army National Guard.

3.  He served in Southwest Asia during Operations Desert Shield/Desert Storm from 23 December 1990 to 30 April 1991 and was awarded the Army Commendation Medal for his service in Kuwait.

4.  The record contains three DA Forms 705 (APFT Scorecard) showing the applicant failed a total of nine APFT's between 1 May 1990 and 15 April 1992.

5.  The applicant was placed on a special physical training (PT) program.  A bar to reenlistment was imposed following the second failure and remained in effect for the remainder of his service.

6.  On 23 April 1992, the applicant's command initiated separation proceedings for unsatisfactory performance under Army Regulation 635-200 (Personnel Separations), chapter 13.

7.  The applicant acknowledged the separation action, requested counsel, and indicated he would submit a personal statement; however, no personal statement is of record.

8.  On 5 May 1992, the separation authority approved the separation and directed the applicant be discharged with a GD.

9.  The applicant was discharged in the rank of private first class on 19 May 1992 with a GD.  He had 2 years, 1 month, and 10 days of active service with no time lost.

10.  His DD Form 214 shows he was awarded the Army Commendation Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Southwest Asia Service Medal with three bronze service stars, Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, and Kuwait Liberation Medal.

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

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the purpose and policies for enlisted personnel separations.

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7a(1) in pertinent part states, "A Soldier will not necessarily be denied an HD solely by reason of a specific number of convictions by court-martial or actions under the Uniform Code of Military Justice, Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  Paragraph 3-7b states a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.

	d.  Chapter 13 states that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).  The regulation requires that separation action be taken when in the commander's judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he served faithfully and honorably in Kuwait during the Persian Gulf War.  His inability to pass the APFT did not adversely affect his duties as a combat engineer.  He believes his service as reflected by his awards warrants a full HD.

2.  The applicant's service during the Gulf War was commendable as shown by his award of the Army Commendation Medal.  However, it was also his duty to meet and maintain the Army's physical fitness standards.

3.  His command exercised its option to retain him on active duty following his second APFT failure and placed him on a special PT program to assist him in overcoming his APFT failures.  However, he continued to fail the APFT an additional seven times despite being on the special PT program.

4.  It appears that based on his continued failure to pass the APFT and the bar to reenlistment, his commanding officer exercised his discretion and determined the applicant's service was not so meritorious to warrant an HD and directed that he be separated with a GD.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were appropriate considering all the facts of the case; therefore, no relief is warranted.

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)                                         AR20100019546



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ABCMR Record of Proceedings (cont)                                         AR20100019546



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