BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120010643 


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 discharge, under honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that the characterization of his service is inequitable.  When he returned from burying his father he sought a hardship discharge.  When his request was denied, his platoon sergeant recommended that he gain weight so he would be involuntarily discharged.  No one ever recommended that he see a counselor.  He contends that had he been properly counseled his career would have continued.  He argues that his records do not show unsatisfactory performance as stated on his DD Form 214.  He also contends that he was told his discharge would be automatically upgraded.

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.  On 29 March 1989, the applicant enlisted in the U.S. Army Reserve.  He was ordered to active duty for training, completed the training requirements, and he was awarded military occupational specialty (MOS) 51K (Plumber).

3.  On 29 January 1991, the applicant enlisted in the Regular Army.  He successfully completed the training requirements and he was awarded MOS 95B (Military Policeman).  He was subsequently assigned for duty in the Federal Republic of Germany (FRG).

4.  On 1 January 1992, the applicant was advanced to specialist, pay grade E-4.

5.  On or about 21 May 1993, the applicant departed the FRG for duty at Fort Riley, Kansas.

6.  The applicant's DA Form 705 (Army Physical Fitness Test (APFT) Scorecards show the following:

* 30 July 1993:  Failed diagnostic APFT 
* 10 September 1993:  Failed record APFT
* 14 October 1993:  Failed diagnostic APFT
* 22 December 1993:  Failed record APFT
* 30 December 1993:  Failed diagnostic APFT

7.  On 22 September, 15 October, and 30 December 1993, the applicant was counseled concerning his APFT failures and his overweight condition.  He was informed of the requirements for passing the APFT and that if he did not succeed he would be administratively discharged.  He was also informed that he would not be separated under the provisions of the weight control program for being overweight, but rather for unsatisfactory performance.

8.  On 1 March 1994, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, based on two APFT failures.

9.  On 1 March 1994, the applicant consulted with counsel and elected not to make a statement in his own behalf.


10.  On 30 March 1994, the appropriate authority approved the recommendation for separation and directed that he be issued a General Discharge Certificate.  He further directed that the applicant not be transferred to the Individual Ready Reserve.

11.  Accordingly, he was discharged under honorable conditions on 26 April 1994.  He had completed a total of 3 years, 2 months, and 28 days of creditable active duty service.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 states initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).  The regulation requires that separation action be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, paragraph 3-7a, states 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 his discharge should be upgraded because it is inequitable and he was not properly counseled.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The evidence of record clearly shows the applicant was counseled on several occasions concerning his APFT failures and overweight condition.  Furthermore, he was specifically informed that he would not be separated for being overweight but rather for unsatisfactory performance.  This indicates the applicant's chain of command must have believed the applicant was deliberately contributing to his condition or that he was not taking the necessary steps required to help himself.  As such, his actions were unsatisfactory.

5.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from the military.  Discharges are considered for an upgrade only after a request for an upgrade has been made. 

6.  There is no evidence of error or injustice in this case.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20120010643



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ABCMR Record of Proceedings (cont)                                         AR20120010643



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