BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012605 


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 to an honorable discharge.

2.  The applicant states his discharge was inequitable because a couple of sergeants misused their authority against him, causing his work performance to suffer, which led to his separation from the military.  

	a.  He elected a career as a 94B (Food Service Specialist) to keep his experience in alignment with his Bachelor of Science degree in Travel Industry Management, with concentrations in Hotel/Motel Management and Food and Beverage Management.  

	b.  His sergeant/pay grade E-6 appeared to have a dislike for him and would purposely give him impossible assignments to complete in a certain amount of time and then get angry when he completed them with efficiency.  He also assigned him the less popular cleanup duties.  

	c.  A sergeant/pay grade E-5 enjoyed picking on him to try and provoke him to a physical encounter with him.  

	d.  He explained the situation to his company commander and was told he should take the Officer Candidate Test since he had a college degree.  He asked to be transferred to another division and he was denied.

3.  The applicant provides no additional evidence in support of his application.
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 8 January 1989 for a period of 3 years for military occupational specialty (MOS) 94B.  He completed basic combat and advanced individual training and was awarded MOS 94B.  He was assigned to the 1st Aviation Battalion at Fort Riley, KS.

3.  He accepted nonjudicial punishment (NJP) on:

	a.  26 February 1990, for:

* failure to go at the time prescribed to his appointed place of duty
* two specifications of disrespect in deportment toward a 	noncommissioned officer (NCO)
* failure to obey a lawful order from an NCO

	b.  2 April 1990, for stealing property of a value of about $19.19 from the Main Post Exchange.

4.  He received a written reprimand from his unit commander for using foul language toward and threatening to do physical harm to an NCO.

5.  On 17 July 1990, his commander notified him he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a general discharge under honorable conditions.  The commander stated his recommendation for discharge was based on the applicant's continued disrespectful behavior towards NCO's and larceny.


6.  The commander advised the applicant of his right to:

* be represented by counsel
* submit statements in his own behalf
* review documents to be presented to the separation authority
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

7.  On 19 July 1990, the applicant acknowledged he had been advised by consulting counsel of:

* the basis for the contemplated action to accomplish his separation for unsatisfactory performance and its effects
* the rights available to him
* the effect of any action taken by him in waiving his rights

8.  He further acknowledged he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood:

* he was ineligible to apply for enlistment in the Army for 2 years after discharge
* he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for a discharge upgrade, but there was no implication his discharge would be upgraded

9.  His commander recommended he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13 of Army Regulation 635-200.

	a.  The applicant had historically had problems respecting and complying with orders issued by NCO's.  He had accepted NJP for disrespect and insubordination and the larceny of government property.  

	b.  It was very likely that his behavior will continue regardless of rehabilitative attempts and that he will be a disruptive influence in any assignment.  His potential for advancement for leadership ability was unlikely.  

	c.  Further attempts at rehabilitation are not in the best interest of the Army as it would not produce a quality Soldier.


10.  On 19 July 1990, the appropriate authority:

* waived the requirement for a rehabilitative transfer
* directed he be discharged with a general discharge under honorable conditions
* directed he not be transferred to the U.S. Army Reserve as he did not possess the potential for useful service under the conditions of full mobilization

11.  On 2 August 1990, he was discharged due to unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.  He completed 1 year, 6 months, and 25 days of active service that was characterized as under honorable conditions.  

12.  There is no indication he applied to the ADRB for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely

	b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  


DISCUSSION AND CONCLUSIONS:

1.  He contends his sergeants didn't like him because he had a college degree.  He contends they gave him seemingly impossible tasks, then became angry when he completed them in a timely and efficient manner.  One sergeant enjoyed picking on him and tried to provoke him to a physical encounter with him.  However, he has not provided any evidence to substantiate his contentions.

2.  He accepted NJP on two occasions and he did not complete the term of service he contracted for.  His commander's recommendation for his separation stated he historically had a problem with respecting and complying with orders issued by NCO's.  Further, he had accepted NJP for larceny.  Therefore, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  He was advised and he acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, there is no basis to upgrade his 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 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)                                         AR20110012605



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ABCMR Record of Proceedings (cont)                                         AR20110012605



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