IN THE CASE OF:	

		BOARD DATE:	 1 July 2014

		DOCKET NUMBER:  AR20130020044


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 discharge, from under honorable conditions (general) to an honorable discharge.

2.  The applicant states his discharge was downgraded to an under honorable conditions (general) discharge based on an incident for which he received an Article 15 (nonjudicial punishment (NJP)) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)).  He states the Article 15 included the maximum possible punishment at the time; however, it was used months later to downgrade his discharge.

3.  The applicant provides no additional evidence in support of his request.

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.  On 16 October 1990, the applicant enlisted in the Regular Army.  He completed his initial entry training, and he was awarded military occupational specialty 95B (Military Police (MP)).  Following completion of his initial entry training, he completed an overseas tour in Germany.

3.  On 16 December 1992, he was promoted to the rank/grade of specialist (SPC)/E-4.

4.  On 5 August 1993, he was assigned to the 59th MP Company at Fort Carson, CO.

5.  His record contains two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) that show he failed a record APFT on 18 October 1993, then failed a diagnostic (not for record) APFT on 15 December 1993.  Finally, he failed record APFTs on 11 February 1994, 4 April 1994, and 28 June 1994. 

6.  Several documents contained in his record allude to a company-grade Article 15 he received on 9 December 1993 for violating Article 86 of the UCMJ; specifically, he was absent without leave (AWOL) for an unspecified period.  His record is void of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) that recorded the circumstances and imposed punishment associated with this incident.

7.  On 21 December 1993, his immediate commander recommended his bar from reenlistment, citing his NJP and substandard performance of military duties (tardiness to formations and/or work calls).  On this same date, he acknowledged notification of this action.  On 10 January 1994, his battalion commander approved the bar to reenlistment.

8.  On 12 August 1994, his immediate commander notified him of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  The immediate commander cited his failure of three consecutive record APFTs.

9.  On 12 August 1994, after meeting with counsel, the applicant acknowledged receipt of the separation memorandum, the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights.  He declined to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

10.  On 25 August 1994, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  He stated the applicant's conduct would not improve with rehabilitative attempts on the part of the Army, and he opined that rehabilitation would not be in the best interests of the Army.

11.  The separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he receive an under honorable conditions (general) discharge.

12.  On 16 September 1994, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance, with an under honorable conditions (general) characterization of service. 

13.  On 13 February 1997, the Army Discharge Review Board denied his request for an upgrade of his discharge.

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

   a. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will 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's request for upgrade of his general under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's duty performance was sub-standard.  His record shows he failed three consecutive record APFTs, received NJP for being AWOL, and he was habitually tardy to formations and/or work calls.  In general, he had difficulty adapting to his chain of command's expectations once he arrived at Fort Carson.  
3.  His record shows his chain of command barred him from reenlistment and initiated separation action against him.  His separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His under honorable conditions (general) discharge is commensurate with his overall record of military service.

4.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance 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)                                         AR20090011583



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ABCMR Record of Proceedings (cont)                                         AR20130020044



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