IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110010559 


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 under honorable conditions to honorable.

2.  He states he was dealing with clinical depression which was not detected until after he was discharged.  He regrets it was not diagnosed and treated while he was serving on active duty.  He would like his entry and discharge dates to be taken into consideration.  He enlisted in November 1990 during Operation Desert Shield and he was discharged after Operation Desert Storm was over.  He never desired a career in the military; he joined strictly out of a sense of patriotic duty to his country as he had expected a much longer effort in Iraq.  He feels his reasons for joining the Army were very honorable.  Clinical depression is a serious health problem that took years for him to overcome.  He knows this affected him and his decisions while he was on active duty.

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 for a period of 4 years on 14 November 1990.

3.  His record includes six DA Forms 4856 (General Counseling Form) showing he was counseled for:

* failing the diagnostic Army Physical Fitness Test (APFT) on 26 January 1991, 26 February 1991, 28 March 1991, and 30 April 1991
* failing to meet standards which led to unfavorable consideration for promotion to private/E-2

4.  The DA Forms 4856 show he was informed that three APFT failures without significant progress could result in being administratively separated from the service.

5.  On 20 May 1991, the applicant's company commander recommended to the battalion commander that the applicant be released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2a, based on poor duty performance, repeated APFT failure, and failure to respond to counseling and rehabilitation.

6.  On 3 June 1991, the applicant acknowledged receipt of notification of his proposed separation for APFT failure and unsatisfactory performance under the provisions of Army Regulation 635-200, paragraph 13-2a.

7.  On 4 June 1991, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsatisfactory performance, the rights available to him, and the effect of any action taken by him in waiving his rights.  He requested consultation with military counsel and indicated he did not desire to make statements in his own behalf.  He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 5 June 1991, shows he was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met retention requirements of Army Regulation 40-501 (Standards of Medical Fitness).  The evaluation section of the form shows his behavior was normal, he was fully alert and fully oriented, his mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.

9.  On 20 June 1991, the separation authority approved his release from the Army under the provisions of Army Regulation 635-200, paragraph 13-2a, and directed his service be characterized as general under honorable conditions.  On 25 June 1991, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 months and 12 days of active military service.

10.  Army Regulation 635-200 sets forth the requirements and procedures for 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 separation for unsatisfactory performance was proper and equitable and in accordance with the regulations in effect at the time.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The record shows he underwent a mental status evaluation prior to his separation.  The examination showed he had the mental capacity to understand and participate in the proceedings and met retention requirements.  There is no documentary evidence showing he was suffering from clinical depression at the time of his service.

3.  The separation authority could have directed issuance of an honorable discharge, but did not do so.  It must be presumed that the separation authority considered his overall record and did not find his service was sufficiently meritorious to warrant an honorable discharge.  This was a reasonable conclusion considering the applicant's poor duty performance, repeated APFT failure, and failure to respond to counseling and rehabilitation.

4.  In view of the foregoing, there is no basis for granting the relief he requests.

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)                                         AR20110010559



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ABCMR Record of Proceedings (cont)                                         AR20110010559



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