IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100026794 


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 be upgraded to honorable. 

2.  The applicant states he was never in any trouble and did not want to get out of the Army.  After the Gulf War, he was having problems breathing and could not complete the [physical training] runs.

3.  The applicant provides no 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.  On 21 March 1990, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 12B (Combat Engineer). 
3.  On 28 June 1990, the applicant departed Fort Leonard Wood, Missouri, for duty in Europe.  On 16 July 1990, he was assigned to Company D, 54th Engineer Battalion, located in the Federal Republic of Germany (FRG).

4.  During the period from 25 January to 5 May 1991, the applicant served with his unit in Saudi Arabia.  He returned to the FRG on 6 May 1991.

5.  On 14 July 1992, the applicant departed the FRG and returned to the United States.

6.  On 26 August 1992, the applicant was assigned to U.S. Army Garrison, Fort Riley, Kansas.

7.  A DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) shows the following APFT scores for the applicant:

* 12 December 1991: Passed all three events with total score of 224
* 22 April 1992:  Passed all three events with a total score of 247
* 17 November 1992:  Passed push-ups; failed sit-ups (50 points) and run (zero points); total score was 113
* 2 March 1993: Passed push-ups and sit-ups; failed run with two points; total score was 134

8.  DA Forms 4856 (General Counseling Form) recorded the following:

	a.  18 November 1992: The applicant was counseled for failing the APFT and placed in a supplemental physical training program.  He was informed that continued failure of the APFT could result in elimination from the service and that he could receive a characterization of service under honorable conditions (general) or under other than honorable conditions.  The applicant concurred with the counseling but made no statement on the form.

	b.  2 March 1993:  The applicant was counseled on his second APFT failure.  He was again advised of the various characterizations of service he could receive if eliminated due to this APFT failure.  He was informed that he would be processed for separation and that the final determination regarding his characterization of service rested with the commander.  The applicant concurred with the counseling but made no statement on the form.  

9.  On 11 January 1993, the applicant was removed from the weight control program.  At the time, he weighed 209 pounds, which exceed the screening table weight ceiling of 185 pounds.  His body fat content was 21.27 percent, which was within the authorized standards.
10.  On 11 March 1993, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He based his recommendation on the applicant's two consecutive APFT failures.  The commander indicated that rehabilitation attempts included counseling and the company run remedial physical training program.  The applicant was informed he was required to undergo a complete medical examination and was provided the dates and location for his examination.  

11.  The applicant's service medical records are not available for review.

12.  On 16 March 1993, the applicant consulted with counsel and elected to make a statement in his own behalf.

13.  On 23 March 1993, the applicant wrote in a memorandum to the battalion commander:

	a.  that he requested an honorable discharge;

	b.  that his family problems caused him to concentrate less on his physical requirements;

	c.  that he served an overseas tour and received an Army Achievement Medal; and

	d.   that he was deserving of an honorable discharge because he did not bring any discredit on the U.S. Army.

14.  On 23 April 1993, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

15.  Accordingly, he was discharged under honorable conditions on 6 May 1993.  He had completed 3 years, 1 month, and 16 days of creditable active duty service.

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

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides 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.

	b.  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 general discharge should be upgraded to honorable because he was having breathing problems, causing him to fail the APFT. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

4.  The commander based his recommendation on the applicant's two consecutive APFT failures.  There is no evidence of record showing that the applicant suffered from any physical condition that prevented him from being able to pass the APFT.   Furthermore, the applicant made no mention of this difficulty when counseled regarding his APFT failures.

5.  In view of the above, the applicant's 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)                                         AR20100026794





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ABCMR Record of Proceedings (cont)                                         AR20100026794



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