IN THE CASE OF:
BOARD DATE: 2 July 2013
DOCKET NUMBER: AR20120022423
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.
2. The applicant states he was given a general discharge under honorable conditions, but he has been unable to get jobs with law enforcement due to the type of his discharge. He states he has paid his debt and is disabled because of his service to the Army. He believes his discharge should have been upgraded years ago. He also states that he is now 40-percent disabled.
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 on 27 December 1990 for a period of 4 years and training as a cannon crewman. He completed one-station unit training as a cannon crewman at Fort Sill, Oklahoma, and was transferred to Fort Carson, Colorado, for his first and only duty assignment.
3. On 2 December 1991, the applicant's commander notified him that he was initiating action to separate him from the service due to unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 13-2. He cited the applicant's repeated failure of the Army Physical Fitness Test, his having written a dozen bad checks, and his lack of motivation toward continued military service as the basis for the recommendation.
4. After consulting with defense counsel, the applicant elected not to submit a statement in his own behalf.
5. The appropriate authority approved the recommendation for separation on 16 December 1991 and directed the issuance of a General Discharge Certificate. He was accordingly discharged on 10 January 1992.
6. On 3 November 1993, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 29 May 1996, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.
7. 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.
8. 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'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 sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service during such a short period. 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.
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) AR20120022423
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ABCMR Record of Proceedings (cont) AR20120022423
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