IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100027595 


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 a fully honorable discharge.

2.  The applicant states there is no error or injustice in his case, he simply desires to have his discharge upgraded for his own honor.

3.  The applicant provides no additional evidence with his application.

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 was born on 7 June 1974 and he enlisted in the Regular Army in Dallas, Texas, on 3 February 1995 for a period of 3 years and training as an infantryman.

3.  He completed one-station unit training at Fort Benning, Georgia, and was transferred to Fort Hood, Texas, for assignment as a fighting vehicle infantryman.

4.  On 20 October 1995, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a command sergeant major.

5.  On 19 December 1995, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer. 

6.  On 18 June 1996, the applicant's commander initiated action to bar the applicant from reenlistment.  He cited the applicant's disciplinary record and his failure to respond to repeated counseling sessions regarding the applicant's repeated failure to obey lawful orders, failure to go to his place of duty, absence without leave, poor appearance and performance, loss of sensitive equipment, failure of his Army Physical Fitness Test (APFT), and substandard behavior.

7.  The applicant declined the opportunity to submit a statement in his own behalf and the battalion commander approved the bar to reenlistment on 21 June 1996.  The applicant elected not to submit an appeal.

8.  On 20 June 1996, NJP was imposed against him for being absent from his unit from 27 March to 28 March 1996.

9.  On 5 August 1996, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  He cited the applicant's disciplinary record and his repeated failing to repair and disobeying lawful orders as the basis for his recommendation.

10.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

11.  The appropriate authority approved the recommendation for discharge on 18 August 1996 and directed that he be furnished a General Discharge Certificate.

12.  Accordingly, he was discharged under honorable conditions on 18 October 1996 under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He completed 1 year, 8 months, and 15 days of total active service.

13.  On 6 August 2000, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He indicated he desired an upgrade of his discharge so he could obtain benefits.  On 27 September 2000, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

14.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions was normally considered appropriate.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed in such a short period of service.  His service simply did not rise to the level of a fully honorable discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.



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)                                         AR20100027595



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ABCMR Record of Proceedings (cont)                                         AR20100027595



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