BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130017138 


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 to a fully honorable discharge. 

2.  The applicant states, in effect, he only received one Article 15 during his military service.  He submitted two letters in his defense stating that he was a well-intentioned Soldier who had been misguided and stepped out of line at the time.  He was punished with a reduction in rank even though his Article 15 did not result in a loss of rank.  His platoon sergeant made him wear the wrong rank. 

3.  The applicant provides three letters in connection with his 1992 discharge. 

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 1 August 1990 and he held military occupational specialty 11B (Infantryman).  

3.  He served in Italy from 10 December 1990 to 26 May 1992.  He was assigned to the 3rd Battalion (Airborne), 325th Infantry Regiment.  He also served in Southwest Asia from 25 April to 16 August 1991. 

4.  He was awarded or authorized the:

* National Defense Service Medal
* Army Service Ribbon
* Southwest Asia Service Medal with one bronze service star
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Parachutist Badge

5.  He was frequently counseled by members of his chain of command for various infractions including an extensive history of writing bad checks and not paying just debts, unsatisfactory performance, and disobeying orders. 

6.  On 26 January 1992, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order.  His punishment consisted of a reduction to private/E-2, a forfeiture of pay (both suspended), and extra duty and restriction. 

7.  On 22 April 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander recommended issuance of a general discharge.

8.  On 22 April 1992, 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 of the procedures/rights that were available to him.  He elected to submit statements (written on 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 was issued to him
* he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, an act of consideration did not mean his discharge would be upgraded 

9.  In the statements that were submitted: 

	a.  The Chief of Protocol commended the applicant for his dedication and degree of professionalism, military courtesy, and attention to detail.  

	b.  The Noncommissioned Officer in Charge of the Secretary of the General Staff, Southern European Task Force commented on the applicant's outstanding performance, courteous efforts, and efficiency.  He also indicated he was unaware of any problems associated with the applicant.

	c.  A Protocol Assistant stated the applicant performed his duties (driving high ranking officials) in a professional manner.  He showed professionalism and courtesy.  

10.  On 4 May 1992, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander cited the applicant’s previous incidents of indiscipline and/or misconduct.  His intermediate commander recommended approval.

11.  On 5 May 1992, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed that he be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 28 May 1992.

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in accordance with chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general), and he completed 1 year, 9 months, and 28 days of active military service.

13.  On 26 February 1997, the ADRB reviewed his discharge and determined it was proper and equitable.  The ADRB unanimously voted to deny an upgrade of his characterization of service. 

14.  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, in pertinent part, 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.  

15.  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 extensive history of writing bad checks and not paying his debts.  He would not conform to military standards 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 or unwilling to conform.  His substandard failure, which demonstrated a lack of self-discipline and lack of motivation, appears to have left no other option but to discharge him.  Accordingly, his immediate commander initiated discharge action against him.  

3.  His administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized 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.  Based on his failure to meet Army standards, 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 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 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)                                         AR20130017138



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ABCMR Record of Proceedings (cont)                                         AR20130017138



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