IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026614 


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 to upgrade his General Discharge, Under Honorable Conditions to an Honorable Discharge. 

2.  He states he was a young Soldier who had lost a child at birth during his service.  He contends that this was found to be the fault of the military hospital and a death benefit was paid to him with an agreement to drop the charges.  His marriage suffered and ultimately ended in divorce.

3.  He also states that he was psychologically unstable and went from trying to be the best Soldier with reenlistment opportunities, to being unsure about what to do.  He needed counseling; however, the only counseling he received was provided by his superiors and the chaplain.  The actions which occurred at the end of his service are not reflective of who he was and he would like to apologize for them.

4.  He did not provide any additional documentation. 

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.  His military personnel record shows he was born on 12 August 1969 and enlisted in the Regular Army on 12 February 1987 at the age of 17 years, 
6 months, and 1 day.  After the completion of training he served in military occupational specialty 93C (Air Traffic Control).  On 22 June 1990, he reenlisted in the Regular Army for an additional 4 years. 

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in 
item 9 (Awards, Decorations and Campaigns) his most significant achievements were award of the Air Assault Badge and the Army Achievement Medal. 

4.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows the highest rank/grade he attained while on active duty was specialist/E-4.

5.  On 18 April 1989, he was issued a Memorandum of Reprimand (MOR) by Headquarters, 1st Aviation Brigade (Air Assault) for driving over the speed limit on Fort Rucker, AL.  The MOR was directed to be filed in his Military Personnel Records Jacket for a period of three years or upon his transfer from the installation.

6.  His records show that on 12 September 1990, his immediate commander initiated a recommendation for separation under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 13, paragraph 13-2a for unsatisfactory performance.  His commander stated the specific and factual reason for the action was due to his receipt of two nonjudicial punishments (NJP) under Article 15 of the Uniform Code of Military Justice for the following:

	a.  On 27 July 1989 for failing to pay court ordered judgment of $560.67 from 
3 May 1988 until 27 July 1990, and

	b.  On 27 August 1990 for going absent without leave from 20 to 21 August 1990. 

7.  The recommendation for separation also shows he received numerous general counselings during the period 3 March 1989 through 21 August 1990.  Two of the counselings were for failing to pay his rent and his power bill.  The commander stated that the applicant would continue to be a discipline problem if he remained in the Army.  He had deliberately and repeatedly violated the standards of performance expected of a Soldier.  The applicant freely acknowledged he did not wish to remain in the Army.

8.  On 18 September 1990, he was advised by counsel on the basis for the contemplated action to separate him for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  He indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  He elected not to submit any statements on his own behalf. 

9.  On 20 September 1990, the separation authority approved the request for discharge under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He directed the applicant be issued a General Discharge certificate and that he not be transferred to the U.S. Army Reserve, Individual Ready Reserve. 

10.  Accordingly, on 28 September 1990 he was separated under the provisions of chapter 13 of Army Regulation 635-200 for unsatisfactory performance.  He completed a total of 3 years, 7 months, and 16 days of net active service.  Item 24 (Character of Service) confirms his discharge was Under Honorable Conditions (General) and Item 28 (Narrative Reason for Separation) confirms his discharge was for unsatisfactory performance.

11.  There is no indication in the available record to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations. 

12.  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.



13.  Army Regulation 635-200, paragraph 3-7, 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.  He contends that he was young and in effect, had difficulties dealing with the death of his child.  Special note is made of his loss and the psychological and emotional struggles he must have felt. 

2.  His military records show that he was nearly 20 years old at the time his record of indiscipline began.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who followed the orders of their superiors and successfully completed their military service.

3.  Evidence shows his separation was based upon unsatisfactory performance as a Soldier, which included numerous counseling statements and NJP.  His quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  His records show he was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

5.  Based on the foregoing, there is insufficient basis to upgrade his 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)                                         AR20100026614





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ABCMR Record of Proceedings (cont)                                         AR20100026614



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