IN THE CASE OF:	  

		BOARD DATE:  1 April 2014

		DOCKET NUMBER:  AR20130013329 


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 be upgraded to honorable.

2.  The applicant states:

* the captain of his company discriminated against him because he was not homosexual
* the captain and those above him were all homosexual
* the captain would not allow him to transfer to another unit
* this was unjust

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 23 October 1986 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 54B (chemical specialist).  On 27 February 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 February 1989 for a period of 5 years.

3.  On 12 September 1989, nonjudicial punishment (NJP) was imposed against him for being drunk and disorderly.

4.  On 22 November 1989, NJP was imposed against him for failure to repair (FTR).

5.  He was counseled for:

* missing morning physical training formations (5 times)
* insubordination (twice)
* bad checks
* losing Government equipment (but recovered)

6.  On 11 December 1989, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  His unit commander cited the following:

* FTR for formations (9 times)
* he had been derelict in the performance of his duties by leaving the door unsecured
* he lost Government equipment
* his lack of self-discipline and proper motivation
* two Article 15s
* he had no regard for military laws and regulations, customs, and standards
* he had been disrespectful on several occasions to noncommissioned officers 
* his conduct was insubordinate

7.  He consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged he understood he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected to submit a statement in his own behalf.  In summary, he stated:

* since he had been in Company D, he was harassed by his company commander repeatedly
* he was an NBC (nuclear, biological and chemical) specialist and the company commander did not know anything about the field
* the company commander took pride in the power he had to mess with individuals he disliked personally
* he could do his job if allowed, but he has not been allowed
* he requested a transfer

8.  The company commander recommended the applicant's request for rehabilitation transfer be waived.

9.  On 18 December 1989, the separation authority approved:

* the request for waiver of rehabilitation transfer
* the recommendation for separation and directed the issuance of a general discharge

10.  On 18 January 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He completed a total of 3 years, 2 months, and 26 days of creditable active service.

11.  There is no evidence in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

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





	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his company commander discriminated against him because he was not homosexual.  However, there is no evidence and he provides no evidence which shows he was the victim of discrimination.

2.  His record of service included adverse counseling statements and two NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130013329



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ABCMR Record of Proceedings (cont)                                         AR20130013329



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