BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110021721 


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 that his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states the analyst preparing his case for review by the Army Discharge Review Board (ADRB) recommended his discharge be upgraded due to the time elapsed since his discharge and his post-service accomplishments.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the ADRB decisional document.

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 U.S. Army Reserve (USAR) Delayed Entry Program on 5 October 1987 in the rank and grade of private first class/E-3.  He enlisted in the Regular Army on 9 August 1988, completed training, and was awarded the military occupational specialty 24C (Hawk Firing Section Mechanic).

3.  He was assigned to duty in Germany effective 22 May 1989 and was advanced to pay grade E-4 on 3 April 1990.

4.  On 1 November 1990, a bar to reenlistment was imposed due to a series of nine negative counseling statements principally relating to his failure to report for formations or duty.

5.  On 1 February 1991, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty.

6.  On 25 March 1991, his unit commander initiated separation proceedings under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Unsatisfactory Performance).  His unit commander recommended the applicant's separation with a GD.  The unit commander stated that a rehabilitation transfer was considered to create serious disciplinary problems or a hazard to the military mission or to the Soldier and such a transfer would be inappropriate because the Soldier was resisting rehabilitative attempts.

7.  On 30 March 1991, after consulting with counsel, the applicant acknowledged the separation action and waived his rights to have his case reviewed by an administrative separation board, to have a personal appearance before an administrative separation board, and to submit a statement on his own behalf.

8.  The separation authority approved the separation action and directed the applicant's service be characterized as under honorable conditions (general).

9.  The applicant was released from active duty on 17 April 1991 and transferred to the US. Army Reserve Control Group (Annual Training).

10.  On 12 April 2006, despite the analyst's recommendation that the discharge was unduly harsh, the ADRB denied the applicant's request for an upgrade of his GD.

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

	a.  Paragraph 3-7a provides that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b provides that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The opinion of the analyst preparing the ADRB decisional document that the GD was unduly harsh was not accepted by the board members and as such has little bearing on this Board's review.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant had a number of negative counselings for being absent from duty that could have resulted in NJP.  Although his command elected not to proceed with NJP for these absences, they clearly demonstrate a pattern of misconduct and show his service did not meet the standards of acceptable conduct warranting an HD.

4.  The record does not contain and the applicant has not provided any documentation of post-service conduct so meritorious as to outweigh his misconduct.


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)                                         AR20110021721



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ABCMR Record of Proceedings (cont)                                         AR20110021721



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