BOARD DATE:	  7 May 2014

		DOCKET NUMBER:  AR20130015066 


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 that the reason for his discharge be changed from unsatisfactory performance to hardship with excellent performance.  In addition, he requests his rank be restored to sergeant (SGT)/E-5 and award of the Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM).

2.  The applicant states he was sick and overstressed.  He used unsatisfactory performance tactics to get out of the military.  As a SGT, he scored 100 percent on the written and hands-on Skill Qualification Test (SQT).  He was a hard working Soldier with excellent performance.  He further states he deserves award of the ARCOM and AAM. 

3.  The applicant provides no additional 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 22 July 1977.  He successfully completed training and was awarded military occupational specialty 13B (Cannon Crewman).  

3.  He was promoted to SGT effective 10 December 1980.  Effective 10 August 1981, he was assigned to the Personnel Control Facility (PCF), as a guard commander, Fort Sill, OK.  

4.  On 25 January 1982, he reenlisted.

5.  A DA Form 2166-6 (Enlisted Evaluation Report) for the period January through December 1982 shows the applicant's rater stated "[applicant] requires constant supervision on virtually every task given to him."  

	a.  His rater stated he had been removed from his duties as Guard Commander due to instances of arrest by civilian authorities for disturbing the peace and his inability to get along with his peers and supervisors.  His performance at that point did not reflect a noncommissioned officer (NCO) capable of supervising troops even though he had received 100 percent on his SQT.  The rater recommended no supervisory position be given to him.

	b.  The indorser stated the applicant's overall performance was below average.  He argued with his NCO in charge over orders given by him which caused a critical mission not to be accomplished, thus receiving an Article 15 for it.  His total lack of self-discipline when he lost his temper characterized him as unfit.  He was being monitored for possible elimination under chapter 14, misconduct, subsequent to formal counseling that had been administered by the Battery Commander.  The indorser recommended not to promote him and not to allow assignment to a leadership position.

6.  Effective 28 March 1983, he was assigned to A Battery, 6th Battalion, 10th Field Artillery, Germany.

7.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 23 April 1983 for poor duty performance
* 11 May 1983 for duty performance
* 23 May 1983 for rehabilitative transfer
* 6 September 1983 for failure to repair

8.  On 20 November 1983, the applicant underwent an evaluation by a military social worker pursuant to his separation action.  The social worker indicated the applicant was referred for an evaluation because of his inability to function due to numerous family problems.  His work performance, attitude and motivation level were described as substandard as an NCO and he was pending disciplinary action.

	a.  The social worker stated the applicant presented himself as an immature, impulsive individual who tended to project blame for his failures upon others.  He appeared to have limited self-insight, minimal coping ability and problem solving skills, and lack of self-discipline.

	b.  The applicant was cleared for any administrative action deemed appropriate by his command.  He did not believe further rehabilitation efforts would be successful.  He also did not foresee any significant changes in the applicant's behavior, personal or family problems.  The social worker recommended that the applicant be considered for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, due to his unsatisfactory performance in the military.

9.  On 1 December 1983, he accepted NJP under the provisions of Article 15, UCMJ, for willfully and wrongfully exposing his penis in an indecent manner.  His punishment consisted of reduction to the grade of specialist four/E-4, forfeiture of $444.00 of pay per month for two months, and 45 days of restriction.

10.  On 5 December 1983, the applicant's battery commander notified him he had recommended his separation for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He stated the reasons for the recommendation were the applicant's poor duty performance as a 13B.  Specifically, he failed to properly complete any task assigned to him in the unit.  Further, his personal problems were such that he had no potential for successful continued service.  He informed the applicant that the least favorable characterization of service he could receive was general under honorable conditions, and he advised the applicant of his rights.

11.  On 6 December 1983, he consulted with counsel who advised him of the basis for his proposed separation and its effects, the rights available to him, and the effect of a waiver of his rights.

12.  After consulting with counsel, he waived consideration of his case by a board of officers and personal appearance before such a board.  He elected not to submit statements in his behalf, and he did not request counsel.

13.  On 7 December 1983, his battery commander recommended his separation for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He stated the applicant's conduct and efficiency were such that he was not suited for the U.S. Army.  The applicant had numerous instances of financial and social misconduct.  In addition, the battery commander stated that on 6 December 1983 the applicant accepted NJP under the provisions of Article 15, UCMJ, for willfully disobeying a superior commissioned officer.  His punishment consisted of reduction to the grade of PFC/E-3, forfeiture of $150.00 for one month, 14 days restriction, and 14 days extra duty.

14.  On 7 December 1983, the separation authority approved a waiver of the requirement for rehabilitative transfer; approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13; and directed issuance of a General Discharge Certificate.

15.  On 19 December 1983, the applicant was discharged in accordance with the separation authority's decision.

16.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 December 1983 shows he was awarded:

* Army Service Ribbon
* Army Good Conduct Medal 
* NCO Professional Development Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge (Grenade)

17.  Item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 shows the entry "UNSATISFACTORY PERFORMANCE."

18.  There is no evidence in the applicant's available military service records that shows he was awarded or recommended for award of the ARCOM or AAM.

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

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

21.  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.

22.  Army Regulation 600-8-22 (Military Awards) states the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

23.  Army Regulation 600-8-22 states the AAM is awarded to members of the Armed Forces of the United States, who while serving in a noncombat area on or after 1 August 1981, distinguished themselves by meritorious service or achievement.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

24.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

25.  The request, along with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be changed from unsatisfactory performance to hardship.  After reviewing the applicant's military service record, evidence shows he had a history of unsatisfactory performance that began after he reenlisted.  He was not able to supervise Soldiers under his command, he lacked self-control and self-discipline, and he failed to complete assigned tasks.

2.  His battery commander indicated the applicant's conduct and efficiency was such that he was clearly not suited for the military.  His commander further indicated the applicant had numerous instances of financial and social misconduct.  While assigned to A Battery, 6th Battalion, 10th Field Artillery, he continued to perform in an unsatisfactory manner.  He failed to respond to counseling regarding his performance and he received NJP twice.  The evidence fully supports his chain of command's determination that his performance was unsatisfactory and warranted his discharge.

3.  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.  The available evidence shows no basis for changing the reason and authority for his discharge.

4.  The applicant contends that his rank should be restored to SGT.  However, evidence of record shows he was reduced from SGT to SPC for willfully and wrongfully exposing his penis in an indecent manner and he was reduced from SPC to PFC for willfully disobeying a superior commissioned officer.  The record leaves no doubt that he was properly reduced as a result of misconduct.

5.  There is insufficient evidence for awarding the applicant the ARCOM and AAM.  This in no way affects his right to pursue his claim for the ARCOM and AAM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.


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 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)                                         AR20130015066



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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