IN THE CASE OF: 

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130010952 


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, in effect, an upgrade of his general discharge (GD) and a change in the reason and authority for his discharge.

2.  He states, in effect, he would like to have his discharge upgraded and there are no medical records.  He requested them and he received a letter stating he has no medical records.  He believes he was misled with regard to his separation.  His performance was not unsatisfactory.

3.  He provides no documentary evidence in support of his request.

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 4 April 1989, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 11B (Infantryman).

3.  He was counseled regarding his performance on:

* 12 August 1989 – for failure to report for duty as a charge-of-quarters runner
* 25 September 1989 – for failure to meet physical training (PT) run standards
* 2 October 1989 – for failure to make the PT run
* 23 October 1989 – for not having his wall locker secure, not making the PT run, and failure to report to duty
* 17 November 1989 – for making a false official statement with intent to deceive and not being present for formation
* 4 December 1989 – for violation of quarters subsequent to being placed on quarters to recover from frostbite to his fingertips
* 13 December 1989 – for disobeying a lawful order by failing to wear extreme cold weather gloves to avoid further injury to his frostbitten left thumb

4.  On 23 February 1990, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for three specifications of failing to obey a lawful order by refusing to pack his gear to get ready for guard duty.

5.  On 12 April 1990, he underwent a medical examination as part of his separation processing.  The examining physician found him qualified for separation.

6.  On 12 April 1990, he underwent a mental status evaluation.  This evaluation noted no psychiatric diagnoses and he was found to have the mental capacity to understand and participate in proceedings.

7.  On 27 April 1990, he was counseled for failure to pay a just debt.

8.  On 15 May 1990, he underwent a second mental status evaluation.  He was diagnosed with an "occupational problem."  The examining psychiatrist found he was substantially capable of appreciating the nature of his conduct and conforming his conduct to the requirements of the law.  He was found to be able to understand and participate in administrative proceedings, and he was cleared for action as deemed appropriate by his chain of command, to include consideration for administrative separation.
9.  On 3 July 1990, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance and that he was recommending he receive a GD.  His commander stated the reasons for the proposed action were that, from August 1989 to June 1990, the applicant had been counseled on his lack of discipline and poor duty performance and that, during this period, the applicant had committed numerous violations of the UCMJ including:

* failure to be at his appointed place of duty at the prescribed time on two occasions
* failure to obey a lawful order on three occasions
* dishonorably failing to pay a debt
* drunk and disorderly conduct
* breaking restriction

10.  On 10 July 1990, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

11.  After consulting with counsel, he elected to submit a statement in his own behalf.  He acknowledged he understood that he could expect to encounter extreme prejudice in civilian life if a GD were to be issued to him.  

12.  In the statement he submitted he requested that the action to separate him be disapproved.  He stated his goals for his Army career had always been to do the best job he could and to gain as much education as possible so he would be a more productive Soldier and citizen.  He indicated he was enclosing letters of support from coworkers and a letter of appreciation as documentary evidence of his achievements.  He further stated he was not proud of the incident that led to the initiation of the separation action, that he took full responsibility for the incident, and that he realized that what he did was a serious lapse in judgment that he promised would never happen again.  He concluded by stating that if retention was not possible he was requesting an honorable discharge (HD).

13.  The letters of support and letter of appreciation mentioned in his statement are not available for review.

14.  On 18 July 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance, and directed that he be issued a General Discharge Certificate.

15.  On 24 August 1990, the applicant signed a DA Form 3081-R (Periodic Medical Examination (Statement of Exemption)).  He stated he had undergone a medical examination on or about 12 April 1990 in conjunction with his separation proceedings and that to the best of his knowledge there had been no significant change in his medical condition since that medical examination.

16.  On 24 August 1990, a Judge Advocate General's Corps officer found the separation action to be legally sufficient.  

17.  On 18 September 1990, the Chief, Personnel Services Battalion, stated the applicant's separation action had been reviewed for completeness and conformance with Army Regulation 635-200.  The action was found to be administratively correct.

18.  On 25 September 1990, the applicant was discharged in accordance with the separation authority's decision.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 24 (Character of Service) – "UNDER HONORABLE CONDITIONS (GENERAL)"
* item 25 (Separation Authority) – "AR 635-200, CHAPTER 13"
* item 28 (Narrative Reason for Separation) – "UNSATISFACTORY PERFORMANCE"

19.  His complete service medical records are not available for review.

20.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

21.  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 under honorable conditions.  Separation under this chapter requires commanders to establish that a Soldier meets medical retention standards.

	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 evidence of record does not support the applicant's request for an upgrade of his GD and a change in the reason and authority for his discharge. 

2.  The applicant's statements regarding the absence of his medical records imply that he may believe he should have been discharged for medical reasons.  The record shows he underwent a medical examination as part of his separation processing and he was found qualified for separation.  Approximately 4 months after this medical examination, he stated there had been no significant change in his medical condition.  There is no documentary evidence to support the implication that he should have been discharged for medical reasons.  

3.  He states he feels he was misled with regard to his separation; however, there is no evidence to support his statement.  The record shows he was advised by counsel of the basis for his separation and its effects, the rights available to him, and the effect of a waiver of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  Additionally, he states his performance was not unsatisfactory, but his record shows otherwise.  He was counseled numerous times for his performance and conduct, and he received NJP for three specifications of failing to obey a lawful order.  The evidence fully supports his chain of command's determination that his performance was unsatisfactory and warranted his discharge.  

5.  Based on his record of indiscipline, 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 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)                                         AR20130010952



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ABCMR Record of Proceedings (cont)                                         AR20130010952



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