IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006448 


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 that he served his country from 1987 to 1991 in Germany and during the Persian Gulf War in Iraq and upon his return from the Gulf War he was unable to pass the Army Physical Fitness Test (AFPT) partly due to a knee injury he sustained doing physical training in the sand and partly because he was drinking too much because his nerves were bad and he wanted to get out of the Army and go home.  He also states that he previously applied for an upgrade of his discharge and received no reply to his request. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a letter acknowledging his request for a review of his discharge by the Army Discharge Review Board (ADRB), a copy of his Army Achievement Medal Certificate, and a copy of his Persian Gulf Registry Code Sheet.

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 10 March 1987 for a period of 5 years and training as a metal worker.  He completed his basic training at Fort Sill, Oklahoma and was transferred to Aberdeen proving Ground, Maryland to undergo his advanced individual training (AIT) as a metal worker.  He failed to successfully complete that training and was transferred to Fort Bliss, Texas to undergo AIT as a MANPADS (Man-Portable Air Defense Systems) crewman.  He completed his training and was transferred to Germany on 13 December 1987 for assignment to an air defense battery.  He departed Germany on 8 December 1989 for assignment to Fort Stewart, Georgia.

3.  The applicant was counseled on 31 May 1990 for failing the APFT and was enrolled in the remedial physical training (PT) program.

4.  On 4 June 1990 he was counseled regarding his being arrested for operating a motor vehicle while intoxicated and failure to pass an APFT.  Additionally, his on-post driving privileges were suspended.

5.  On 27 June 1990 he was counseled regarding his consumption of alcohol and his failure to respond to counseling. 

6.  On 17 July 1991 he was counseled regarding his failure to pass the APFT (two events).

7.  On 26 August 1991, the applicant’s commander notified him that he was initiating action to discharge the applicant under the provisions of Army regulation 635-200, chapter 13, for unsatisfactory performance due to five consecutive APFT failures.

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

9.  The appropriate authority approved the recommendation for discharge on 12 September 1991 and directed that he be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 24 September 1991 under the provisions of Army regulation 635-200, chapter 13 for unsatisfactory performance.  He had served 4 years, 6 months and 15 days of active service.

11.  A review of his official records failed to show any indication that the applicant had a medical profile or that he was placed on any medical restrictions regarding his legs or feet.

12.  On 4 July 1994 he applied to the ADRB for an upgrade of his discharge.  On 17 October 1996, after reviewing all of the available evidence in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.  The notification was mailed to an address in North Richland Hills, Texas.

13.  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 will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.
 
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 therefore 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.  His service simply does 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 has 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 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)                                         AR20110006448





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ABCMR Record of Proceedings (cont)                                         AR20110006448



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