BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120021606 


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 honorable.

2.  The applicant states, in effect, that he was discharged for unsatisfactory performance, but he was actually discharged because he was a homosexual who was "outed" by other service members and his sergeant said that he did not want to write that down.  He states he is homeless and he needs educational and medical benefits.  Now that it is no longer illegal to be a homosexual, he desires an upgrade of his discharge as he left the military feeling he was a failure and he has suffered mental conditions that made it hard to continue being successful in life.

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.  The applicant enlisted in the regular Army on 10 August 1989 for a period of 4 years, training as a combat engineer, and assignment to Fort Riley, Kansas.  He completed one-station unit training at Fort Leonard Wood, Missouri, and was transferred to Fort Riley for his first and only assignment.

3.  The applicant was initially assigned to the 937th Engineer Group on 1 December 1989.  On 9 April 1990, the applicant's commander requested the applicant's rehabilitative transfer to another unit.  He cited that the applicant had been counseled on numerous occasions and was given nonjudicial punishment for being absent from his place of duty as the basis for his request.  The request was approved and the applicant was reassigned to Company B, 1st Engineer Battalion, on 24 April 1990.

4.  On 16 May 1990, nonjudicial punishment was imposed against him for writing bad checks on four separate dates.

5.  On 3 July 1990, the applicant's commander advised him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to unsatisfactory performance.  He cited the applicant's uttering of bad checks, repeatedly missing formations, and unsatisfactory job performance as the basis for his recommendation.  The separation packet contained numerous counseling statements indicating the applicant had been counseled on three occasions for being drunk and disorderly, having an unauthorized civilian in his barracks room, three occasions of failing to go to his place of duty, and two instances of failing to obey lawful orders.

6.  After consulting with counsel, the applicant indicated that he would submit a statement in his own behalf; however, there is no evidence in the applicant's records to show he submitted a statement.

7.  The appropriate authority approved the recommendation for discharge on 11 July 1990 and directed the issuance of a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 23 July 1990 under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He completed 11 months and 14 days of active service.

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

10.  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.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate under the circumstances.

3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to his overall record of service and his repeated misconduct.  His record contains no evidence to suggest he was involved in homosexual misconduct and his service simply did not rise to the level of a fully honorable discharge.

4.  Accordingly, there does not appear to be any basis to grant his request for an upgrade of his discharge to fully honorable.



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 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)                                         AR20120021606



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ABCMR Record of Proceedings (cont)                                         AR20120021606



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