IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017029 


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 general discharge under honorable conditions to an honorable discharge for medical reasons.

2.  The applicant states he was discharged under honorable conditions without the opportunity to ask for or be offered a medical discharge with his service characterized as honorable.  He understands the use of alcohol was a problem.  However, he was ready and alert to do the task assigned to him.  An incident he had with the police in downtown Fort Bliss, TX, in 1985 was not taken into consideration.  He was treated with racial "injustice" and he was always tormented by this treatment.  Since his wrongful discharge, he has been an honest citizen.  He believes he deserves an honorable discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Commonwealth of Puerto Rico Certificate of No Penal Record.

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's records show he enlisted in the Regular Army on 12 July 1983 and he held military occupational specialty 13B (Cannon Crewman).  After serving with the 6th Battalion, 8th Field Artillery, Fort Ord, CA, he was reassigned to the 2nd Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, TX.

3.  He was promoted to private first class/E-3 on 1 September 1984.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  He was frequently counseled by members of his chain of command for various infractions, including being out of ranks, failing to show up to work, being arrested by Military Police, and driving while intoxicated.

5.  On 18 March 1985, the Fort Bliss Provost Marshal suspended his driving privileges on Fort Bliss pending resolution of the driving while intoxicated charges resulting from his arrest by the El Paso Police Department on 11 March 1985.

6.  On 22 March 1985, he was absent without leave (AWOL) and he returned to military control on 29 March 1985.

7.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 5 April 1985 for being AWOL from 22 to 29 March 1985.

8.  On 24 June 1985, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The immediate commander cited the applicant's pattern of disruptive behavior, including falling asleep during guard duty, being AWOL, driving under the influence of alcohol, driving on post while his privileges were suspended, traffic violations, and overall apathy.  The immediate commander recommended the issuance of a general discharge.

9.  On 24 June 1985, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He elected not to submit a statement in his behalf and further acknowledged he understood that:

* he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade – however, an act of consideration does not mean his discharge would be upgraded

10.  On 24 June 1985, the applicant's immediate commander initiated separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200.  The immediate commander cited the applicant's previous incidents of indiscipline and/or misconduct.

11.  On 1 July 1985 subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 18 July 1985.

12.  His DD Form 214 shows he was discharged under honorable conditions on 18 July 1985 under the provisions of Army Regulation 635-200 chapter 13.  He completed a total of 2 years of creditable military service with lost time from 22 to 28 March 1985.

13.  There is no indication in his records that he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his military specialty and/or grade or rendered him unfit for military service.

14.  There is no indication he petitioned the ADRB for a review of his discharge within that board's 15-year statute of limitations.

15.  He provides a post-service Certificate of No Penal Record from the Commonwealth of Puerto Rico.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his disruptive behavior, including falling asleep while on guard duty, being AWOL, driving under the influence of alcohol, driving on post while his privileges were suspended, traffic violations, and overall apathy.  He would not conform to the military or respond to counseling by his chain of command regarding his responsibility to meet Army standards.

2.  It appears he was given ample time to comply with the standards through counseling, but he was unable to conform to the standards.  His substandard performance which demonstrated a lack of self-discipline and lack of motivation left no other disposition but to discharge him.  Accordingly, his immediate commander initiated separation action against him.

3.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  There is no evidence in the record and he provides none to support his contention that he was not given the opportunity to ask for or be offered a medical discharge.  He fails to specifically identify the medical condition that rendered him unfit and equally failed in providing evidence of such unfitness.  The available evidence clearly shows his service was not interrupted by a medical condition but rather by his failure to satisfactorily perform as a Soldier.

5.  Based on his failure to meet Army standards, he is not entitled to an upgraded 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 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)                                         AR20130017029



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ABCMR Record of Proceedings (cont)                                         AR20130017029



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