BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014646 


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 discharge be upgraded to honorable.

2.  The applicant states:

	a.  When he was in the Army, it set the ground work for who he is now.  He went into the Army straight out of high school and excelled in every challenge he was given.  He served in Desert Storm and was awarded the Bronze Star Medal. Upon his return from Southwest Asia (SWA), he made some bad decisions that led to his general discharge.  Since his departure from the Army, that is the only thing in his life that he wishes he could change.  

	b.  He has dedicated his life to youths who have made mistakes in their lives.  He had been a correctional officer at a detention center for over 10 years and then he became a supervisor.  He now transports people for the Department of Children Services.  He has been married for 15 years and has two sons in college.  He thinks he could have challenged the general discharge when it was given to him but he was too young to realize how important it was to leave the Army with an honorable discharge.  He now hopes it can be changed. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214).




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 27 July 1989 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  On 2 February 1990, he was assigned to the 1st Battalion, 5th Field Artillery Regiment, Fort Riley, KS.

3.  Between April 1990 and December 1991, he was frequently counseled by several members of his chain of command for repeatedly performing his duties in a substandard manner, failing the Army Physical Fitness Test (APFT), failing to obey lawful orders, acting in a disrespectful manner to a noncommissioned officer (NCO), having a negative attitude, failing to properly maintain his clothing and equipment, being absent without leave (AWOL), and passing bad checks.

4.  On 3 July 1991, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 1 to 12 June 1991.

5.  On 20 August 1991, he was convicted by a summary court-martial of assaulting another Soldier by pointing a semi-automatic pistol at him and of breaking restriction.

6.  On 29 October 1991, he was reported as AWOL from his assigned unit.  On 31 October 1991, he returned to military control.

7.  On 17 January 1992, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13 for unsatisfactory performance.  The commander stated the specific reasons were because of his poor duty performance and he continued to get into trouble.  The commander further stated he was recommending him for a general discharge. 

8.  On 17 January 1992, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and the possible effects of a general discharge.  He was advised of the procedures and rights available to him.  He waived consideration of his case by a board of officers and declined to submit a statement on his own behalf.

9.  On 21 January 1992, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a General Discharge Certificate.  On 28 January 1992, he was discharged accordingly.

10.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an under honorable conditions characterization of service.  He completed 2 years, 5 months, and 12 days of net active service during this period of service with 21 days of lost time due to AWOL and/or confinement.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous times he was counseled for his poor performance and attitude, the NJP he received for being AWOL, and the summary court-martial he received for assaulting another Soldier and breaking restriction.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  

3.  Although his post-service conduct may be noteworthy, it doesn't mitigate the fact that he failed to adhere to military standards during his active duty service.

4.  Based on his overall record, his service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20130014646





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ABCMR Record of Proceedings (cont)                                         AR20130014646



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