IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130004129 


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 under honorable conditions to fully honorable or a medical discharge.

2.  The applicant states he was discharged because his wife wrote bad checks and took out loans while he was serving in Egypt.  He ended up being prosecuted for this.  He was told he could get a medical discharge for his foot/ankle.

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 21 January 1982.  Subsequent to completion of basic combat training, he was reassigned to Fort Belvoir, VA, for advanced individual training.

3.  On 17 May 1982, he departed his unit without authority (absent without leave (AWOL)), but he returned to military control on 19 May 1982.

4.  Upon completion of training, he was ordered on a permanent change of station to the 21st Replacement Detachment, Germany, but he failed to report. Accordingly, he was reported as AWOL on 7 July 1982.  He surrendered to military authorities at Fort Knox, KY, on 23 September 1982.

5.  On 7 October 1982, he again was AWOL.  He was dropped from the Army rolls as a deserter on the same date.  He returned to military control on 9 January 1983.

6.  On 10 February 1983, he was convicted by a summary court-martial of three specifications of AWOL from 17 to 19 May 1982, 7 July to 23 September 1982, and 7 October 1982 to 9 January 1983.  He was sentenced to forfeiture of pay and hard labor without confinement.  The convening authority approved his sentence on 14 February 1983.

7.  On 23 March 1983, he was assigned to Fort Bliss, TX, in military occupational specialty 52C (Utilities Equipment Repairman).  On 16 September 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for uttering bad checks.  

8.  On 23 September 1983, the applicant's immediate commander initiated a bar to reenlistment against the applicant citing his continued misconduct.  The applicant was furnished with a copy of this bar, but he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the approval authority.

9.  On 1 February 1984, he was AWOL again, but he returned to military control on 4 February 1984.

10.  On 16 February 1984, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on four separate occasions, being AWOL from 1 to 4 February 1984, and leaving his appointed place of duty without authority.

11.  On 16 February 1984, the applicant underwent a separation physical at William Beaumont Army Medical Center, Fort Bliss, TX.  His separation physical shows there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was fully qualified for separation.

12.  On 24 February 1984, 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 – Enlisted Personnel) by reason of unsatisfactory performance due to his poor performance, inability to adapt to military life, and lack of self-discipline.  The immediate commander recommended the issuance of a general discharge.

13.  On 24 February 1984, 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 the procedures and rights available to him.  He declined to make a statement in his own behalf and further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

14.  Subsequent to his acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.

15.  The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 7 March 1984.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 7 March 1984 under the provisions of chapter 13 of Army Regulation 635-200 with his service characterized as under honorable conditions (general).  He completed a total of 1 year, 7 months, and 19 days of creditable military service with lost time from 17 to 18 May 1982, 7 July to 22 September 1982, 7 October 1982 to 8 January 1983, and 31 January to 3 February 1984.

17.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

18.  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 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.

19.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his multiple instances of AWOL, court-martial conviction, two instances of NJP, and extensive history of negative counseling.  It appears he displayed an inability to perform effectively and could not conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.

2.  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.

3.  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.

4.  Prior to his separation, the applicant underwent a medical examination at William Beaumont Army Medical Center, Fort Bliss, TX.  His separation physical shows there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was fully qualified for separation.  There is no evidence of an unfitting condition at the time of his separation.  Therefore, he does not qualify for a medical separation.

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)                                         AR20130004129



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ABCMR Record of Proceedings (cont)                                         AR20130004129



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