IN THE CASE OF:	  

		BOARD DATE:	    19 November 2013

		DOCKET NUMBER:  AR20130005454 


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 (GD).

2.  He states he was discharged for failing the Army Physical Fitness Test (APFT).  When the paperwork was signed, he believed he would receive an honorable discharge (HD), but he actually received a GD.  He states he served his country honorably and his discharge should be honorable.

3.  He provides 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.  On 25 August 1989, the applicant enlisted in the Regular Army.  He completed initial entry training, and his record shows he held military occupational specialties 11M (Fighting Vehicle Infantryman) and 76C (Equipment Records and Parts Specialist).  

3.  On 16 February 1993, he was honorably discharged for immediate reenlistment, and he reenlisted on 17 February 1993.  

4.  On 22 February 1993, the applicant's commander was notified that the applicant had an outstanding debt that was past due.  

5.  His record shows he was counseled on his performance and conduct on numerous occasions in 1993 on:

* 1 March for failing to pay debts
* 3 March for being absent from his place of duty
* 24 March for failing to complete the company physical training (PT) run
* 27 March for being out of ranks
* 11 June for failing the APFT
* 5 July for failing to prepare for guard mount and for being  relieved from guard mount
* 13 July for failing the APFT
* 30 August for missing duty formation and being absent from accountability/PT formation
* 23 September for failing the APFT

6.  On 19 July 1993, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being relieved from division guard mount due to several deficiencies.  

7.  On 27 September 1993, he submitted a statement to his battalion commander concerning his bar to reenlistment and separation from the Army.  He acknowledged he had failed three consecutive APFTs.  He stated he was not physically adept, but he was a good Soldier.  He listed several of his accomplishments during the period December 1991 to August 1993, and he stated he hoped his statement would aid him in being honorably discharged or reinstated as a Soldier in good standing.  

8.  On 7 October 1993, the applicant’s battalion commander approved a bar to reenlistment against him.  The basis for the bar was three APFT failures.

9.  In an undated memorandum, the applicant's company commander notified him that he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2.  His commander stated the reason for the proposed action was three consecutive APFT failures.  His commander did not indicate a recommended characterization of service.  

10.  On 3 November 1993, counsel advised him of the basis for his contemplated separation, its effects, and the rights available to him.  After consulting with counsel, he elected to submit statements in his own behalf and he waived counsel.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a GD was issued to him.  Any statements he submitted are not included in the available records.

11.  On 4 November 1993, the separation authority approved his discharge for unsatisfactory performance under the provisions of Army Regulation 635-200, paragraph 13-2, and directed he receive a GD.  On 1 December 1993, he was discharged as directed.  

12.  On 1 April 1998, the President, Army Discharge Review Board, notified him his request for a change in the character and/or reason for his discharge had been denied.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  

	a.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or general, under honorable conditions.

	b.  Paragraph 3-7a provides that an HD 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 available evidence does not support the applicant's request for an upgrade of his GD.  

2.  Shortly after he reenlisted, he was counseled for misconduct and poor performance on several occasions, he received NJP, and he failed the APFT three consecutive times.  Based on this record of indiscipline, his chain of command was justified in determining that his performance was unsatisfactory and warranted his discharge.  There is no documentary evidence indicating he was told he would receive an HD.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The NJP he received, records of counseling, and three consecutive APFT failures are clear evidence that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The GD he received accurately characterizes his service subsequent to his reenlistment.  Therefore, he is not entitled to an HD.  

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)                                         AR20130005454





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ABCMR Record of Proceedings (cont)                                         AR20130005454



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