IN THE CASE OF:.

		BOARD DATE:	      6 November 2012

		DOCKET NUMBER:  AR20120008687 


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

2.  The applicant states she was not specifically informed of the type of discharge she was receiving during separation processing.  

3.  The applicant provides no documentary evidence in support of her request.  

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 record shows the applicant enlisted in the Regular Army on 19 July 1983, and was trained in and awarded military occupational specialty (MOS) 91C (Practical Nurse).  
3.  On 15 September 1987, the applicant attained the rank of sergeant (SGT)/
E-5 and this is the highest rank she attained while serving on active duty.  The record documents no acts of valor or significant achievement.

4.  The applicant’s disciplinary history includes extensive formal counseling by members of her chain of command for a myriad of performance and conduct related matters between January 1989 and January 1991.  

5.  On 17 August 1989, the applicant's unit commander initiated a bar to reenlistment certificate against her.  The unit commander stated the applicant demonstrated a lack of potential and apathetic attitude as evidenced by repeated failure of the Army Physical Fitness Test (APFT).  She was counseled for a lack of motivation and discipline, failure to repair, and misuse of military telephones.  On 2 October 1989, the bar to reenlistment was approved by the general court-martial convening authority.  

6.  On 4 January 1991, the unit commander notified the applicant that action was being taken to initiate the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance and that it was being recommended that the applicant receive an HD; however, the intermediate commanders and separation authority were not bound by this recommendation.  The unit commander further informed the applicant the separation authority could direct the applicant’s service be characterized as “honorable” or “under honorable conditions.”  The unit commander cited the applicant’s repeated APFT failures, her failure to meet Army weight control standards, inefficiency as a noncommissioned officer as shown by numerous counseling statements, and her failure to pay just debts in a timely manner as the basis for taking the separation action.  

7.  On 8 January 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to her, she completed an election of rights in which she waived her right to have her case considered by and a personal appearance before an administrative separation board, and she elected not to submit statements in her own behalf.  

8.  On 15 January 1991, the separation authority approved the applicant’s separation action for unsatisfactory performance and directed the applicant receive a GD.  On 28 January 1991, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time shows he completed a total of 
7 years, 6 months, and 10 days of creditable active military service.   

9.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations, or that she ever previously applied to this Board for an upgrade of her discharge.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:   

   a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.
   
   b.  Paragraph 3-7a of the same regulation provides that an HD 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 request to upgrade her discharge because she did not receive adequate information at the time of discharge processing has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was fully informed by her unit commander that although an HD was being recommended the separation authority was not bound by that recommendation.  The evidence further shows she consulted with legal counsel and was thoroughly informed of her rights in connection with the separation action and of the ramifications of waiving those rights during the discharge process.  The evidence also shows that subsequent to this counseling the applicant elected to waive her right to have her case considered by and to personally appearance before an administrative separation board.  She also elected not to submit statements in her own behalf.



3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  Her record of sub-standard performance clearly diminished the overall quality of her service below that meriting a full HD.  As a result, her record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.

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)                                         AR20120008687



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ABCMR Record of Proceedings (cont)                                         AR20120008687



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