IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130002620 


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 he was beat up by some Iraqis at a store.  He feels that if this incident had not occurred, his life would have been different.  He also believes if he gets an upgrade, he can provide his family with a better life.  He was hospitalized after this incident and he was persuaded to sign a chapter 13 under the assumption that he would have the same benefits as an honorable discharge.  

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's records show he enlisted in the Regular Army on 8 May 1992 and he held military occupational specialty 91B (Medical Specialist).  He was awarded or authorized the:

* Army Service Ribbon
* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

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

* revocation of driving privileges; driving with a suspended license
* civilian court conviction for reckless driving
* being apprehended for an alcohol-related incident
* multiple instances of missing accountability formation
* multiple instances of failing to report to duty

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 29 April 1993, being absent from morning formation
* on 2 October 1993, willfully disobeying a lawful order from his commander not to drink in excess of a certain amount during Division Ready Force 

5.  On 29 April 1993, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his October 1992 incident of driving under the influence and his January 1993 reckless driving incident.  The applicant was provided with a copy of this bar but he elected not to submit a statement on his behalf. 

6.  On 21 January 1994, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander recommended issuance of a general discharge.

7.  On 21 January 1994, 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 on his own behalf and further acknowledged that he understood that:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he could apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for an upgrade; however, an act of consideration does not mean his discharge would be upgraded 

8.  On 21 January 1994, 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.  His intermediate commander recommended approval.

9.  On 2 February 1994, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 9 February 1994.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 9 February 1994 in accordance with chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general) and he completed a total of 1 year, 9 months, and 2 days of creditable military service.

11.  There is no indication he applied to the Army Discharge Review Board 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.  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.  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 as evidenced by his multiple instances of military and/or civilian infractions.  He would not conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards. 

2.  It appears he was given ample time to comply with the standards through counseling but he was unable to conform to the standards.  His substandard failure, which demonstrated a lack of self-discipline and lack of motivation, left no other disposition 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.  Contrary to his contention that the reason for his discharge was being beaten by Iraqis, the evidence of record clearly shows a period of military service marred with misconduct including multiple negative counseling, a civilian conviction, two instances of NJP, and a bar to reenlistment. 

5.  The Army does not have and has never had a policy wherein a discharge is upgraded due to passage of time.  Based on his failure to meet Army standards, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgraded 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 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)                                         AR20130002620





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ABCMR Record of Proceedings (cont)                                         AR20130002620



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