IN THE CASE OF:	  

		BOARD DATE:	   24 July 2012

		DOCKET NUMBER:  AR20120001715 


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 her general discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

	a.  her discharge was unjust because she was not offered the opportunity to be rehabilitated; and

   b.  she was discharged because she failed the running portion of the Army Physical Fitness Test (APFT) instead of being allowed retesting or rehabilitation.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to the DD Form 214)

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 record shows she enlisted in the Regular Army on 30 August 1989.  She was trained in and held military occupational specialty 77F (Petroleum Supply Specialist).

3.  On 4 July 1983, she was honorably discharged in the rank of specialist four/E-4 for the purpose of immediate reenlistment.  On 5 July 1983, she reenlisted.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows she was promoted to specialist /E-4 on 1 August 1992 and this was the highest rank/
grade she held on active duty.  It also shows she was awarded or authorized the following awards during her active duty service:

* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon
* Kuwait Liberation Medal (Saudi Arabia)
* Southwest Asia Service Medal with 3 bronze service stars
* Army Good Conduct Medal
* Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar
* Marksman Marksmanship Qualification Badge with Grenade Bar

5.  The applicant's Official Military Personnel File (OMPF) contains four DA Forms 4856 (General Counseling Form) issued on the following dates for the reasons indicated:

* 20 July 1992 - attitude towards taking the APFT
* 3 August 1992 - failing the APFT
* 9 December 1992 - refusing to take two record APFTs
* 30 December 1992 - failing the APFT a second time and possible separation action

6.  On 23 November 1992, the applicant underwent a mental status evaluation that showed:

* her behavior and thought content were normal


* she was fully alert and oriented
* she had an unremarkable mood
* her thinking process was clear
* her memory was good
* she was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings

7.  On 23 December 1992, the unit commander notified the applicant he was initiating action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-2, for unsatisfactory performance with a GD.  The unit commander cited the applicant's two consecutive APFT failures and failure to obey a lawful order as the basis for the proposed separation action.

8.  On 30 December 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, she elected to submit a statement on her own behalf (not included in the OMPF) and representation by counsel.

9.  On an unknown date, the unit commander requested a waiver of the rehabilitative requirements indicating further duty would be inappropriate because the applicant was resisting rehabilitation attempts.

10.  The separation authority approved the applicant's separation and directed issuance of a GD.  He also waived further counseling and rehabilitation requirements.  13 January 1993, the applicant was discharged accordingly.  Her DD Form 214 shows her character of service as "UNDER HONORABLE CONDITIONS (GENERAL),” and she signed the form.

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

12.  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.

13.  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 contends that her GD should be upgraded to an HD because she was not offered any rehabilitation opportunities after failing the APFT.  However, the evidence of record confirms the applicant resisted rehabilitation efforts and twice refused to take the APFT after she initially failed this testing.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant consulted with legal counsel and was provided the opportunity to provide a statement in her own behalf at the time.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.

3.  The applicant's APFT failures and failure to obey an order clearly diminished the overall quality of her service below that meriting a fully honorable discharge.  It did not support the issuance of an HD by the separation authority at the time and does not support an upgrade of his discharge now.

4.  In view of the forgoing, 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)                                         AR20120001715





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ABCMR Record of Proceedings (cont)                                         AR20120001715



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