BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130010511 


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 characterization of service from general under honorable conditions to fully honorable.

2.  He states that his time as an enlisted man was without incident until he returned from doing volunteer work in Florida due to the damage caused by Hurricane Andrew.  He provided aid to many children and adults in conditions only known by most servicemen in war conditions.  After providing care and compassion all day, at night he provided armed protection against looters to what little remained in the victims' homes.  Returning to his duty station, he was emotionally wrecked and withdrawn.  He was only 19 and did not know of post-traumatic stress; he does not think anyone did.  His performance suffered and he believes the general discharge was a form of mercy.  He contends that he was a young and impressionable kid when he returned from Florida.  Had he known of post-traumatic stress, he would have sought help.  He also doesn't think anyone really was aware of it in order to offer help.  He is a good, hard-working man and his discharge has always been his biggest regret.

3.  He provides:

* a 10th Aviation Brigade, 10th Mountain Division, Certificate of Achievement
* copies 1 and 4 of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his General Discharge Certificate

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 10 April 1992 at the age of 18 years, 9 months, and 3 days.  The highest rank/pay grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of release from active duty he held the rank/pay grade of private (PV2)/E-2.

3.  The applicant provides a 10th Aviation Brigade, 10th Mountain Division, Certificate of Achievement which was awarded to him on 22 September 1992 in recognition of his meritorious achievement while attached to the unit during relief operations in Homestead, FL following Hurricane Andrew.

4.  His record reveals he was the recipient of numerous adverse counseling sessions for the following offenses:

* absenting himself from his place of duty on several occasions
* failing to report to his appointed place of duty at the time prescribed on several occasions
* not keeping his chain of command informed
* lack of responsibility and interest in paying attention to detail
* poor communication
* failing to respond to counseling
* being late for duty

5.  His record shows his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) for violating Article 86 of the UCMJ by failing to go at the time prescribed to his place of duty on four occasions between 10 February and 26 March 1993.  His punishment included a reduction in rank/grade, which was suspended.

6.  On 26 April 1993, his punishment was vacated and he was reduced in rank/grade from PFC/E-3 to PV2/E-2.

7.  On 12 May 1993, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The unit commander cited the applicant's Article 15 and numerous incidents of failing to report for duty as the reasons for this proposed action.  He also informed the applicant that he could receive a general discharge and be issued a General Discharge Certificate.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.

8.  On 12 May 1993, he acknowledged that he had been afforded an opportunity to consult with appointed counsel for consultation; or military counsel of his choice, if reasonably available; or civilian counsel at his own expense.  He elected to decline the opportunity.  He further acknowledge that he was aware of the basis for the contemplated action to accomplish his separation under the provisions of Army Regulation 635-200, chapter 13, and its effects; of the rights available to him; and the effect of any action take by him in waiving his rights.  He also elected not to submit a statement in his own behalf. 

9.  On 12 May 1993, the unit commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  The unit commander cited as the basis for this action the applicant's Article 15 and numerous incidents of failing to report for duty.

10.  On 21 May1993, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, and directed the issuance of a General (Under Honorable Conditions) Discharge Certificate.

11.  On 3 June 1993, he was discharged accordingly.  His DD Form 214 shows in:

* Block 24 (Character of Service) the entry "Under Honorable Conditions (General)"
* Block 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 13"
* Block 26 (Separation Code) the entry "JHJ"
* Block 28 (Narrative Reason for Separation) the entry "Unsatisfactory Performance"

12.  The applicant's record is void of evidence showing he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to fully honorable within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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 under honorable conditions.

14.  Army Regulation 635-200, 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 applicant's request for upgrade of his characterization of service to fully honorable was carefully considered and determined to lack merit.

2.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, his chain of command was willing to allow him to remain on active duty and continue to serve.  Evidence clearly shows he was not responsive to the rehabilitative efforts of his command.

3.  Records show that the applicant was 19 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his characterization of service from general under honorable conditions to fully honorable.

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)                                         AR20130010511





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ABCMR Record of Proceedings (cont)                                         AR20130010511



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