BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003857 


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 his general discharge under honorable conditions be upgraded.

2.  The applicant states the only disciplinary issue he had while serving on active duty was failing his Army Physical Fitness Test (APFT) and he was told he would receive an honorable discharge.

3.  The applicant does not provide any additional evidence to support his request.

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 20 April 1989.  He completed training and was awarded military occupational specialty 16P (Chaparral Crewmember).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant's records show he failed his APFT on seven occasions on the following dates:

* 28 October 1989
* 9 February 1990
* 15 May 1990
* 19 June 1990
* 6 September 1990
* 8 November 1990
* 13 February 1991

4.  The applicant's records show he was counseled on multiple occasions for failing APFT's, having a substandard room, having questionable appearance, failing to set an example, and his duty performance.  On 29 November 1990, the applicant was barred from reenlistment.

5.  A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant had the mental capacity to understand and participate in discharge proceedings and he was mentally responsible.

6.  On 1 March 1991, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.

7.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and the rights available to him.

8.  On 5 March 1991, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a general discharge under honorable conditions.  On 13 March 1991, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for unsatisfactory performance.  He completed 1 year, 10 months, and 24 days of creditable active service during this period.

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 requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13, in effect at the time, provided 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.  Soldiers separated because of unsatisfactory performance under this regulation were characterized as honorable or under honorable conditions.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his general discharge under honorable conditions to an honorable discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  His records show he was afforded multiple opportunities to conform to standards.  These records show he was mentally responsible.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record is insufficiently meritorious to warrant a fully 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 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)                                         AR20110003857



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ABCMR Record of Proceedings (cont)                                         AR20110003857



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