IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110018321 


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 correction of the narrative reason for his separation and to obtain his service records. 

2.  He states he does not agree with the narrative reason for his separation.  His father had written him a letter stating he was going to take his own life.  He gave copies to his chain of command and requested leave, but his request was denied.  Three weeks later his father was deceased.  He "got Red Cross leave" and returned to be discharged.  At the time, orders were cut for him to reenlist, but he was not given the opportunity.  He states his records will show his term of enlistment was nearly complete, and his performance was good.  He indicates he may have been suffering from post-traumatic stress disorder, a diagnosis which was not used often at the time.

3.  He provides a self-authored statement. 

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.  Former service members may request copies of their military records by submitting a written request to the National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138.  The portion of his application pertaining to obtaining his service records will not be addressed further in these Proceedings. 

3.  On 16 September 1986, the applicant enlisted in the Regular Army for a period of 3 years.  The highest rank/grade he achieved was private first 
class/E-3.

4.  On 30 June 1988, he was counseled for owing back payments and/or having been late making payments.  His commander noted he had continually demonstrated an inability to manage his private life and that this was the fourth such occurrence of personal instability.  He was briefed that continued instances of this nature were cause for separation from the service.

5.  On 3 August 1988, he underwent a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to be "qualified for chapter discharge."

6.  On 11 August 1988, he received initial counseling upon transfer to a new company.  The noncommissioned officer (NCO) who provided the counseling stated he informed him nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), imposed by his previous commander was suspended, but any UCMJ violations in his new unit would result in vacation of the suspension.  The NCO also stated he informed him he would not be going on leave until the chain of command felt he had been "worked into the system," but future leave in December or November would be okay.  
   
7.  On 29 December 1988, he received NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty twice on 21 November 1988, once on 22 November 1988, and once on 23 November 1988.
   
8.  On 8 January 1989, he was counseled for not repairing or replacing unserviceable gloves after having been told to do so on or about 28 December 1988.
   
9.  On 30 March 1989, he was counseled by his first sergeant (1SG) for not properly securing his pistol after his 1SG found it in his wall locker.  He was informed that continued behavior of a similar nature could result in the initiation of action to eliminate him from the Army for unsuitability, unsatisfactory performance, or misconduct, and the characterizations of service he could receive as the result of such an action.  
   
10.  On 3 May 1989, he received NJP under the provisions of Article 15, UCMJ, for being derelict in the performance of his duty by willfully failing to properly secure his weapon on or about 24 March 1989.

11.  On 19 July 1989, his commander informed him he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, based on two instances of NJP and failure to make progress after a rehabilitative transfer.  

12.  On the same date, he acknowledged receipt of the notification.  He was advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.  He indicated he intended to submit statements in his behalf no later than 21 July 1989.  The record shows he later elected not to submit such statements.  

13.  On 25 July 1989, the separation authority approved the recommendation to discharge him and directed he receive a General Discharge Certificate.  On 8 August 1989, he was discharged accordingly.  He completed 2 years, 10 months, and 23 days of active service.  

14.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 25 (Separation Authority) – Army Regulation 635-200, chapter 13
* item 28 (Narrative Reason for Separation) – unsatisfactory performance

15.  The record is void of documentation pertaining to the circumstances surrounding the death of his father. 

16.  There is no indication he applied to the Army Discharge Review Board (ADRB) to request a change in the narrative reason for his separation within its 
15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation 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.

18.  Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators (SPD)) provides the narrative reasons for separation to be entered in item 28 of the DD Form 214.  The version in effect at the time stated the narrative reason for separation for Soldiers discharged under the provisions of Army Regulation 635-200, chapter 13, was "unsatisfactory performance."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, which required "unsatisfactory performance" as the narrative reason for separation on his DD Form 214.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  There is no evidence showing that the circumstances surrounding the death of his father or his mental state were of such a degree that they warranted consideration by his chain of command as mitigating factors in his discharge processing.  The record shows that, beginning in 1988, he had ongoing problems with his duty performance, received NJP, and did not make progress after a rehabilitative transfer.  This was sufficient cause to initiate action to discharge him for unsatisfactory performance.

3.  In the absence of evidence showing errors in his discharge processing, there is no basis for granting 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)                                         AR20110018321





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ABCMR Record of Proceedings (cont)                                         AR20110018321



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