IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110005085 


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 be upgraded to honorable.

2.  The applicant states he:

* believes his discharge is unjust based on his military training and awards, some of which are not documented in his record
* received the expert rifleman badge
* achieved the top M-60 gunner in the battalion
* was selected to train other Soldiers in the battalion on advanced machine gun and antitank tactics
* came in second overall during Jungle Warfare Training Navigation/Survival
* received two letters of commendation from his battalion commander for actions during training  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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.  He enlisted in the Regular Army on 26 July 1989 for a period of 4 years.  He completed his training and he was awarded military occupational specialty 11B (Infantryman).  He served in Southwest Asia from 11 September 1990 to 8 April 1991. 

3.  On 25 October 1991, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for disobeying a lawful order (to pull air guard). 

4.  On 21 November 1991, a bar to reenlistment was imposed against the applicant.

5.  On 13 March 1992, NJP was imposed against the applicant for violating a lawful general order (breaking curfew). 

6.  A memorandum, dated 14 May 1992, from the applicant's unit commander indicates the applicant was given a company grade Article 15 for failure to repair while in Saudi Arabia and that the records were lost. 

7.  On 19 May 1992, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The reasons for the proposed action were:

* He was unqualified for further military service because despite intensive counseling, a rehabilitative transfer to another company, and NJP aimed at correcting his deficiencies, he continued to perform unsatisfactorily
* He disobeyed a lawful order from a noncommissioned officer on 
     16 October 1991
* He violated a lawful general order by breaking curfew on 7 March 1992

8.  On 20 May 1992, he consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected to submit a statement in his own behalf; however, his statement is not available.  

9.  On 26 May 1992, the separation action was initiated through the applicant's chain of command.

10.  The separation authority's action is not available.

11.  His DD Form 214 shows he was discharged on 19 June 1992 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had served 2 years, 10 months, and 24 days of creditable active service.

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

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badges (M-16 Rifle and Hand Grenade)
* National Defense Service Medal 
* Combat Infantryman Badge
* Air Assault Badge
* Southwest Asia Service Medal with two bronze service stars
* Kuwait Liberation Medal (Saudi Arabia)
* Parachutist Badge
* Army Achievement Medal

13.  Item 14 (Military Education) of his DD Form 214 shows the entry "NA" [not applicable]. 

14.  On 13 February 1998, the Army Discharge Review Board denied his request for an honorable discharge.

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.  His contentions and awards were carefully considered.  However, his record of service included a bar to reenlistment and three NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20110005085



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ABCMR Record of Proceedings (cont)                                         AR20110005085



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