IN THE CASE OF:	  

		BOARD DATE:	    10 September 2013

		DOCKET NUMBER:  AR20130001787 


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 under honorable conditions (general) discharge. 

2.  The applicant states his discharge was supposed to be upgraded after
6 months if he did not get into trouble with the law.  He did not get into trouble with the law.  He wants his discharge upgraded to help get better employment.

3.  The applicant did not provide any 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 19 October 1990 for a period of 5 years.  He completed basic training at Fort Leonard Wood, MO and he was reassigned to Fort Gordon, GA, for completion of training for military occupational specialty (MOS) 29M (Tactical Satellite/Microwave Repairer), but he did not complete training.

3.  He was reassigned to Fort Sam Houston, TX for completion of training in MOS 91A (Medical Specialist), but he also did not complete this training either; therefore, was never awarded an MOS.

4.  He was frequently counseled by members of his chain of command for various infractions including:

* missing bed check
* unsatisfactory wall-locker display
* negative attitude, tardiness, and lack of discipline
* failing to show up for extra duty
* sleeping during classroom
* lack of respect for Soldiers of the opposite sex
* sexually harassing two female Soldiers

5.  His record shows he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  23 September 1991 for failing to obey a lawful order on 18 September 1981 (missing bed check).

	b.  21 October 1991 for failing to obey a lawful order on seven separate occasions (to remain awake in the classroom, to stay awake in the clinic, and wrongfully using explicit and/or degrading verbal and physical contact toward two female Soldiers) and failing to go at the time prescribed to his appointed place of duty on 27 September 1991.

6.  On 5 December 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
chapter 13, by reason of unsatisfactory performance.  The immediate commander stated the applicant was unable to adapt to the military and become a productive Soldier.  The immediate commander recommended issuance of a general discharge.

7.  On 5 December 1991, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He declined to make a statement in his own behalf and further acknowledged that he understood that:

* he did not feel any amount of counseling would have allowed him to overcome the deficiencies forming the basis for the separation action 
* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* if he receives a discharge less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realizes an act by either board does not imply his discharge would be upgraded

8.  On 5 December 1991, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander cited the applicant’s previous incidents of indiscipline and/or misconduct.

9.  On 6 December 1991, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on
18 December 1991.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, with a characterization of service of under honorable conditions (general).  He completed 1 year and 2 months of creditable active service.

11.  There is no indication he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

12.  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, in pertinent part, 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.

	b.  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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance in that he failed to follow instructions, was found sleeping during classroom hours, and harassed female Soldiers, among other offenses.  He would not conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards.

2.  His commander stated the applicant was given ample time to comply with the standards through counseling but he was unable to conform to the standards.  That demonstrated a lack of self-discipline and lack of motivation that left no other option but to discharge him.  Accordingly, his immediate commander initiated separation action against him.

3.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

5.  He was advised that he could apply for a discharge upgrade, but he indicated he understood that such application would not imply that his discharge would be upgraded.

6.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing; therefore, his discharge was proper and equitable and it accurately reflects his overall record of service.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130001787



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ABCMR Record of Proceedings (cont)                                         AR20130001787



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