IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110016864 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states after 21 years of sobriety he has learned he is proud of his service to this great nation.  He does not blame his problems and issues on anyone but himself.  He strove to be the best during his military service but his drinking caused a lot of problems.  He is requesting an upgrade to his discharge so that he can use his prior service to further his education at an online university.

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.  The applicant enlisted in the Regular Army and entered active duty on 
6 February 1985 and held military occupational specialty 94B (Food Service Specialist).  Records show he served with C Battery, 333rd Field Artillery, in Germany from on or about 4 July 1985 to 30 July 1987.

3.  His records reveal an extensive history of negative counseling by his chain of command for various infractions including: 

* Lack of initiative in the work place 
* Refusal to make an effort
* Unsatisfactory performance 
* Failure to perform under pressure 
* Not taking his job seriously
* Lacking in job related skills 
* Lack of attention to detail
* Raising his voice 
* Speaking out of turn 
* Having a smart mouth
* Causing problems with coworkers 
* Poor attitude towards subordinates and superiors
* Bad attitude
* Lack of self discipline and motivation
* Poor communication skills
* Willingly disobeying orders 
* Failure to comply with instructions
* Poor military/uniform appearance
* Lack of loyalty and integrity
* Army Physical Fitness Test (APFT) failure
* Boisterous, rude, and insubordinate 
* Disrespectful towards Noncommissioned Officers (NCO)
* Defamation of character
* Immaturity and lack of military bearing
* Bar to reenlistment


4.  His records show he received punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

* On 17 December 1985, for using disrespectful language towards an NCO
* On 24 July 1987, for failure to obey a lawful command from his superior officer to get a haircut and trim his mustache and writing a bad check 

5.  His records contain three DA Forms 705 (Army Physical Readiness Scorecard) which show he failed the APFT on six separate occasions.

6.  His records contain a traffic violation, dated 10 October 1986, which stated he was cited with exceeding the speed limit by 33 kilometers per-hour.

7.  His records contain a DA Form 4126-R (Bar to Reenlistment Certificate)  The form was signed, on 23 February 1987, by the applicant indicating he had been counseled on the basis of the bar to reenlistment and desired to submit a statement on his own behalf; however, there is no indication he did so.  His commander approved and signed the bar to reenlistment, on 8 April 1987.  The bar to reenlistment was imposed because the applicant received NJP under Article 15 on two occasions, wrote bad checks, and failed Army physical fitness tests on five occasions.

8.  His records contain a SF (Standard Form) 93 (Report of Medical History), an SF 88 (Report of Medical Examination), and a DA Form 3822-R (Report of Mental Status Evaluation).  These forms show he received pre-separation medical and mental evaluations, on 26 June1987, and was found fit to participate in separation proceedings.

9.  On 7 July 1987, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory Performance, 
and informed him of his rights.  On this same day, the applicant acknowledged receipt of the notification.

10.  On 7 July 1987, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general under 
honorable conditions discharge, and the rights available to him.  He requested counsel and indicated his intent to submit statements in his own behalf.

11.  On 14 July 1987, he submitted a memorandum of appeal through his chain of command.  In this appeal he stated rehabilitation, rather than separation, would be the most appropriate course of action to take in his case.  He argues that the chain of command had not helped him to improve in his weak areas, and he would like the chance to make improvements to become a better Soldier.  

12.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he received a general under honorable conditions discharge.  On 30 July 1987, the applicant was discharged accordingly.  His DD Form 214 confirms he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 2 years, 5 months, and 25 days of net active service during this period of active duty.  The highest rank/grade he attained during his military service was specialist four/E-4.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

15.  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.  The applicant requested an upgrade to his discharge so that he can use his prior service to further his education at an online university.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The evidence of record shows his duty performance was tarnished by two instances of NJP, 6 APFT failures, writing eleven bad checks, and  a history of negative counseling.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of his discharge is commensurate with his overall record of military service.

3.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20110016864





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016864



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1