IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120021514 


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 his general discharge to an honorable discharge.

2.  The applicant states he does not recall why he was discharged, but he does believe he has served his country during peace and war times.  When he returned from the Gulf War his wife wanted to leave him.  He went through some difficult times and did not act as he should have acted.  He remembers his commander asking him if he wanted to be discharged and he replied that he did. This was a big mistake on his part.  He does not believe he was properly processed under chapter 13.  He would like to at least be entitled to GI Bill benefits he is entitled to.

3.  The applicant provides no additional evidence.

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 in pay grade E-1 on 11 October 1989.  He completed training and was awarded military occupational specialty 91A (Medical Specialist).  He was advanced to pay grade E-3 on 25 March 1992.

3.  He served in Germany from 22 March 1990 through 11 April 1002 that included a tour of duty in Southwest Asia from 7 December 1990 to 1 May 1991.

4.  He received counseling between June 1991 and March 1992 for:

* military appearance
* personal marital problems
* alcohol abuse
* being absent from morning formations
* tardiness at work
* absences from his appointed place of duty
* failing to pay just debts
* writing bad checks
* unsatisfactory performance
* destruction of government property while under the influence of alcohol
* involvement in an alcohol-related incident
* continued mismanagement of finances
* continued unsatisfactory performance

5.  On 24 March 1992, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being disorderly on 15 March 1992.

6.  On 2 April 1992, the applicant's company commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13, for unsatisfactory performance, with a general discharge.  He advised the applicant of his rights.

7.  On 2 April 1992, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of Army Regulation
635-200, chapter 13, and of the rights available to him.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood he may be given a general discharge and the results of the issuance of such a discharge.

8.  On 3 April 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, with issuance of a general discharge.

9.  Accordingly, on 13 April 1992, the applicant was released from active duty in pay grade E-3, with a general discharge, and he was transferred to the U.S. Army Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed 2 years, 4 months, and 3 days of creditable active service with no time lost.

10.  He was honorably discharged from the USAR on 29 October 1996.

11.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 provided the policy and outlined the procedures for separating individuals for unsatisfactory performance.  Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

	b.  Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, the evidence of record shows he received numerous counseling for many offenses to include continued unsatisfactory performance.  On 2 April 1992, he was notified of action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  After consulting with counsel, he acknowledged he understood the reason for his discharge and that he might be issued a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

2.  There is no evidence of record and he has submitted neither probative evidence nor a convincing argument to support the requested relief.  He has also provided no evidence sufficient to mitigate the character of his service.  His repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.  

3.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20120021514



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021514



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1