BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110005073 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* his discharge should have been changed 1 year after his discharge
* he was discharged because he was 15 pounds overweight
* he was told that his discharge is eligible to be upgraded by law for employment purposes

3.  The applicant 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.  On 16 July 1987, the applicant enlisted in the Army for 3 years.  He completed training as a combat engineer.  

3.  The applicant accepted nonjudicial punishment (NJP) on 21 January 1988 for stealing one stereo cassette receiver and one pair of jeans from the Army Air Force Exchange Service.

4.  He reenlisted in the Army for 4 years on 4 December 1989.

5.  The applicant's records were flagged on 22 May 1990 and he was placed in the weight control program.

6.  The applicant was counseled on at least thirteen separate occasions between 11 April 1989 and 27 September 1991 for the following:

* failure to pay just debts
* writing bad checks
* dishonored checks
* being overweight
* failure to make satisfactory progress in the weight control program

7.  On 4 November 1991, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander cited his bar to reenlistment due to failure to meet Army weight control standards from March 1990 to September 1991; a notification of dishonored checks; and the NJP for larceny as the basis for his recommendation for discharge.  In the notification the applicant was told that he was being recommended for a general characterization of service.  He acknowledged receipt of the notification and he waived his right to consult with counsel.

8.  The appropriate authority approved the recommendation for discharge on 12 November 1991 and directed the issuance of a general discharge.

9.  On 20 November 1991, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He completed 4 years, 4 months, and 5 days of net active service this period.  He received a general discharge.


10.  A review of the available records failed to reveal any evidence contained therein informing the applicant that his discharge would be changed 1 year after his discharge.

11.  Further review of the available records failed to show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  

	a.  Chapter 13 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.

	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's contention that his discharge should have been changed 1 year after his discharge has been noted.

2.  His service in the Army was not fully honorable.  He was counseled on numerous occasions for failure to meet weight control standards and for his indebtedness.  He accepted NJP for larceny.  

3.  The appropriate authority directed the issuance of a general discharge and it properly reflects his overall record of service.  There is no law requiring that his discharge be upgrade and the fact that he desires to seek employment is not sufficiently mitigating to warrant the requested relief. 

4.  In view of the foregoing, 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)                                         AR20110005073





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ABCMR Record of Proceedings (cont)                                         AR20110005073



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