IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20110021053 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he thought his discharge would automatically be upgraded after 6 months.  He recently went to the Department of Veterans Affairs (VA) for assistance and medical care and he was told he was ineligible for benefits.  He believes he has earned benefits.

3.  The applicant provides a copy of 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’s military record shows he enlisted in the Regular Army (RA), in pay grade E-2, on 6 March 1990, for 4 years, with prior Reserve service.  He completed training and was awarded military occupational specialty 11B (Infantryman).

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on: 

* 22 January 1991, for missing movement through neglect on 14 January 1991 
* 12 May 1992, for willfully disobeying a lawful order from a noncommissioned officer (NCO) on 24 April 1992

4.  He was counseled between August 1991 and May 1992 for the following:

* bad checks
* lack of motivation
* disrespectful towards an NCO
* missing first call
* falling out of the physical training run
* M18 smoke grenade in room
* failure to shave
* failure to participate in Expert Infantryman Badge training
* disobeying a lawful order
* disobeying a squad leader
* Article 15

5.  On 30 June 1992, the applicant's company commander initiated a bar to reenlistment against him.  The applicant acknowledged receipt of the bar and elected not to submit a statement in his own behalf.  The bar was approved on 17 July 1992.  The applicant did not appeal the bar to reenlistment.

6.  On 17 July 1992, the applicant's company commander notified him of the intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 13.  He cited the reasons for this recommendation were the applicant had received a field grade Article 15 for missing movement and a company grade Article 15 for disobeying an NCO.

7.  On 17 July 1992, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of chapter 13, Army 


Regulation 635-200 and of the rights available to him.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood he might be issued a general discharge.  

8.  On 17 July 1992, the applicant’s company commander recommended the applicant be separated from the service for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-2a.  The company commander stated the applicant would not develop sufficiently to participate satisfactory in further training and/or become a satisfactory Soldier.  Additionally, it was likely that the circumstances surrounding the initiation of these proceedings would continue or reoccur.  Therefore, rehabilitation would not be in the best interest of the Army.

9.  On 24 July 1992, the appropriate authority approved the request for waiver of rehabilitation transfer and directed the applicant's discharge and the issuance of a general discharge.

10.  On 7 August 1992, he was discharged under the provisions of Army Regulation 635-200, chapter 13, in pay grade E-1, and issued a general discharge.  He was credited with completing 2 years, 5 months, and 2 days of active service during the period under review with no time lost.

11.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 provided the policy and outlined the procedures for separating individuals for unsatisfactory performance. Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

13.  Army Regulation 635-200, paragraph 3-7a, stated 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 be clearly inappropriate.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 6 March 1990.  Between August 1991 and May 1992 he received counseling for unsatisfactory performance.  He was barred from reenlistment, missed movement, and disobeyed an order from an NCO; therefore, his company commander initiated action to separate him for unsatisfactory performance.  The company commander stated the applicant would not develop sufficiently to participate satisfactory in further training and/or become a satisfactory Soldier due to his misconduct.  He was issued a general discharge on 7 August 1992.

2.  There is no evidence in his records and he has provided no evidence to show his discharge was unjust.  He has also provided no evidence sufficient to mitigate the character of his service.  He acknowledged he understood that he might be issued a general discharge.  His repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.  

3.  In the absence of evidence to the contrary, it appears his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering the facts of the case.

4.  He is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge after 6 months or any other passage of time.  The ABCMR also does not grant relief solely for the purpose of an individual qualifying for benefits administered by the VA.

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20110021053



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ABCMR Record of Proceedings (cont)                                         AR20110021053



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