IN THE CASE OF:	   

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130009115 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he served in Operation Desert Storm just out of basic and the only reason for his discharge was for the Army Physical Fitness Test (APFT) failure. 

3.  The applicant provides no supporting documentation.

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 13 September 1990, completed training, and was awarded the military occupational specialty 76Y (Unit Supply Specialist).

3.  Upon completion of training, he was assigned as a Desert Storm Initial Entry Replacement with the 23rd Replacement Detachment, with receipt of imminent danger pay for the period 15 January 1991 through 15 April 1991.

4.  Following 30 days leave, he received orders assigning him to Company B, 79th Engineer Battalion in Germany effective 17 July 1991.

5.  A general counseling statement, dated 13 August 1991, indicates the applicant failed the APFT on 3 January 1991 and again on 12 August 1991.  The unit commander stated the applicant's two-time failure of the APFT not only reflected his poor physical condition but a lack of self-discipline and a motivation problem.  The unit commander also initiated a suspense of favorable personnel actions (FLAG).  

6.  A general counseling statement, dated 13 September 1991, states the applicant failed the APFT on 12 August 1991 and again on 13 September 1991.  The unit commander utilized the same paragraph on this counseling statement as he utilized on the previous statement.  

7.  On 30 September 1991, his commanding officer submitted a disqualification for receipt of the Army Good Conduct Medal due to his two APFT failures on 
12 August 1991 and 13 September 1991.

8.  On 25 November 1991, the applicant's command initiated separation actions under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 13 for unsatisfactory performance.  The notification document notes no lost time, no favorable recommendations, and no nonjudicial punishment or courts-martial.  The unit recommended he receive a GD.

9.  The applicant acknowledged the separation recommendation.  He requested receipt of an honorable discharge since the reason for his separation was due solely to the APFT failure with no history of any disciplinary infractions.

10.  The separation authority approved the separation and directed the applicant receive a GD.

11.  The applicant was discharged on 20 December 1991 with 1 year, 3 months, and 8 days of creditable service with no lost time.  

12.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b states a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

   c.  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; 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 under honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is shown to have failed at least three APFTs over the course of 8 months.  

2.  He was warned that the continued failures to meet the physical requirements would result in adverse actions and there is no indication he made any improvement in his testing scores over that course of time.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130009115





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ABCMR Record of Proceedings (cont)                                         AR20130009115



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