IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100021254 


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, under honorable conditions be upgraded to honorable. 

2.  The applicant states when he enlisted he was a boy who knew nothing but thought he knew everything.  This did not set well with his squad leader.  His squad leader did not like him at all and made his life there very difficult.  Although he has no proof, he knows his squad leader was behind the three Soldiers that attacked him.  He contends his squad leader was the reason for his discharge.  Further, he excelled and received an Army Commendation Medal when he was assigned elsewhere; however, when he returned, the squad leader made him hate the Army.  Since he left the Army, he has been a good citizen.  He respects the law and loves his country.  He wants his record corrected so that he and his family can benefit.

3.  The applicant provides no additional evidence.

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 29 June 1989, the applicant, at the age of 18, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 91A (Medical Specialist).  The highest pay grade held was private first class/E-3.

3.  On 24 December 1989, he was reassigned to Headquarters and Headquarters Battery, 1st Battalion, 82nd Field Artillery, 1st Cavalry Division, Fort Hood, TX.

4.  On 2 October 1991, his commander notified the applicant of his intention to recommend separation from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander cited the following reasons for his action:

* Article 15, violation of Article 91 (Insubordinate conduct), 25 April 1991
* Article 15, violation of Article 86 (Failure to go) 7 June 1991
* Article 15, violation of Article 86, 17 July 1991

5.  On the same date, the applicant acknowledged receipt of the commander's notification.  He waived his right to counsel and did not elect to submit a statement in his own behalf.

6.  On unknown date, his commander initiated a recommendation to separate the applicant due to unsatisfactory performance.  He also requested that the requirement for rehabilitative transfer be waived because the applicant had a total disregard for authority and would not conform to the normal standard for a Soldier.

7.  On unknown date, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.  

8.  Accordingly, he was discharged under honorable conditions on 21 October 1991.  He completed 2 years, 3 months, and 23 days of creditable active service. 

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

11.  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.  The applicant contends that his general discharge, under honorable conditions should be upgraded to honorable so he and his family can benefit. 

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  His contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was more than 17 years of age at the time of his enlistment, had satisfactorily completed training, and he was promoted to private first class prior to receiving his first Article 15 at the age of 19 years and 
10 months.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20100021254





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ABCMR Record of Proceedings (cont)                                         AR20100021254



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