IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20120000487 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he believes the record to be in error because he was given a physical fitness test that he failed shortly after having exploratory surgery on his right knee.  He goes on to state that while he does not dispute the Army’s policy on physical fitness standards, he believes the problems with his right knee contributed to his lack of physical performance.  He further states that upon discharge from the Army he was granted disability for that same knee which has increased over time.  He also states he realizes it has been several years since his discharge; however, he is now a Department of Veterans Affairs (VA) employee and recognizes the importance of having a fully honorable discharge that his children can be proud of.

3.  The applicant provides his DD Form 214 (Certificate of release or Discharge from Active Duty) and VA Rating Decision.

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 on 21 November 1990 for a period of 4 years.  He completed his one-station unit training at Fort Sill, OK and he was transferred to Fort Richardson, AK on 7 March 1991 for his first and only duty assignment.

3.  On 5 November 1992 the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He cited as the basis for his recommendation that the applicant was not attempting to pass the Army Physical Fitness Test (APFT) despite being found medically fit to take the test.  He also stated the applicant had no sense of urgency and used the minimum of his ability to accomplish the run.  He recommended the applicant be issued a General Discharge Certificate.

4.  After consulting with defense counsel the applicant elected not to submit a statement in his own behalf.

5.  The appropriate authority approved the recommendation for discharge and directed the applicant be issued a General Discharge Certificate.

6.  Accordingly, on 4 December 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance, with a General Discharge Certificate.  He completed 2 years and 14 days of creditable active service.

7.  A review of the developmental counseling sheets contained in his record shows the applicant was counseled regarding his participation in physical training and the fact that medical officials refused to issue him a medical profile because they did not deem his condition as preventing him from completing his physical training.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
9.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions was normally considered appropriate.

10.  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's administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason were appropriate under the circumstances.

2.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service.  Medical personnel determined he should be able to perform his physical training and his commander noted his lack of motivation to do so.  As such, his service simply did not rise to the level of a fully honorable discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120000487



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ABCMR Record of Proceedings (cont)                                         AR20120000487



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