IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110000743 


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 upgrade of his general discharge to an honorable discharge.

2.  He states, in effect, he was never involved in incidents that would have warranted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He attests that he always conducted his service as a respectable and responsible Soldier representing the United States.  He is requesting this discharge upgrade because his current status is preventing him from obtaining veterans services and he would like to be eligible for services offered by the USAA (United Services Automobile Association).  He feels he deserves this upgrade due to the fact that he served his country in the war against Honduras and was awarded the Army Achievement Medal and the Army Good Conduct Medal.

3.  He 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.  The applicant enlisted in the Regular Army on 13 May 1986 and he held military occupational specialty 13B (Cannon Crewmember).  The highest rank/pay grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  His record reveals his acceptance of NJP under the provisions of Article 15 of the UCMJ on one occasion for violating Article 91 by being disrespectful in both language and deportment toward a superior noncommissioned officer (NCO) on 2 October 1990.

4.  On 17 January 1991, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated against the applicant.  The basis for the action was his record of NJP, several dishonored checks, and numerous counseling sessions for conduct unbecoming a Soldier in the U.S. Army.  On 22 January 1991, he acknowledged he was furnished a copy of the recommended barring action and he indicated he desired to submit a statement in his own behalf, which is not available for review. On 21 February 1991, the appropriate authority approved the action.  On           14 March 1991, the applicant acknowledged receipt of the approved bar to reenlistment and indicated he would appeal the bar.  There is no appeal action in the available record.

5.  On 18 November 1991, the applicant's bar to reenlistment was reviewed for the second time.  As a result, his commander decided to leave the bar in effect and initiate separation proceedings.

6.  His DA Form 2166-7 (NCO Evaluation Report) rendered for the period August 1991 through December 1991 shows his rater opined that he needed improvement in the areas of competence and leadership and that his overall potential for promotion and/or service was marginal.  His senior rater opined that his performance and overall potential for promotion and/or service were poor.

7.  His record reveals a history that includes numerous adverse counseling statements for matters such as:

* poor duty performance
* failing to report to his appointed place of duty at the prescribed time
* 
wearing an improper uniform
* failing to maintain a military appearance
* operating a motorized vehicle without a license
* rendering checks without sufficient funds to cover them
* insubordination toward a superior
* being disrespectful toward a superior
* domestic disputes
* failing to pay his debts
* poor communication
* abuse of authority
* failing his Skills Qualification Test (SQT) twice
* uttering false statements

8.  On 19 December 1991, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance.  The commander cited the applicant's disciplinary history, dereliction of duty, and failing his SQT 2 years in a row as the basis for this action.  The unit commander also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate. The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

9.  On 3 January 1992, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited his disciplinary history, dereliction of duty, failing his SQT 2 years in a row, failing to respond to counseling, and his inability to conform to acceptable standards of Soldiering as the basis for this action.

10.  Having been advised by consulting counsel, he acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was also informed that if he was issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.  He submitted a statement in his own behalf, wherein he expressed his sentiment that although he had made a lot of mistakes during his career, he was a good Soldier who had successfully 

completed military schools, passed every physical fitness test, and attained the rank of SGT during his first period of enlistment.  He concluded that he was not a bad Soldier; he just couldn't balance his on-duty performance with his off-duty performance.

11.  On 6 January 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed the issuance of a General Discharge Certificate.

12.  On 21 January 1992, he was discharged accordingly.  His DD Form 214 shows in:

* Block 24 (Character of Service) the entry "Under Honorable Conditions (General)"
* Block 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 13"
* Block 26 (Separation Code) the entry "JHJ"
* Block 28 (Narrative Reason for Separation) the entry "Unsatisfactory Performance."

13. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Achievement Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Noncommissioned Officer (NCO) Professional Development Ribbon
* Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars

14.  On 5 June 1992, the applicant appealed to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to an honorable discharge.  On 18 May 1995, after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

15.  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.

16.  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 request for upgrade of his general to an honorable discharge was carefully considered and determined to lack merit.

2.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20110000743



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000743



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1