IN THE CASE OF:    

		BOARD DATE:  30 September 2014    

		DOCKET NUMBER:  AR20140001494


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 a general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* he believes he received the wrong characterization and he should have received an honorable discharge
* he was the Post Soldier of the Quarter in 1990, which shows his service in the Army was honorable and he was a very good Soldier during his time
* he was in charge of many high-interest programs when he was in the Army
* he received his Bachelors degree, continued to progress, and is a registered radiology technologist
* he is a local Cub Scout leader and he manages an imaging center

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 17 May 1991 following prior enlisted service in the Army National Guard.

3.  On 21 May 1993, the applicant failed his Army Physical Fitness Test (APFT).  He was counseled and enrolled in his unit's remedial physical training program.  Records show repeated AFPT failures as follows:

* on 6 March 1994, he failed a diagnostic AFPT
* on 17 May 1994, he failed his second record AFPT
* on 18 October 1994, he failed his third record AFPT

4.  He was counseled on numerous occasions and given opportunities to correct his performance.

5.  On 11 August 1993, he was apprehended for driving on a curb and driving under the influence (DUI) of alcohol on post.  He was given two breathalyzer tests that measured his blood alcohol content (BAC) as .13 percent and          .14 percent.

6.  He was enrolled in an in-patient alcohol and drug rehabilitation program.

7.  On 24 August 1993, he was issued a general officer memorandum of reprimand (GOMOR) for his DUI offense.  He acknowledged receipt of the GOMOR on 24 August 1993 and elected not to submit statements in his own behalf.

8.  On 1 November 1994, his commander initiated a discharge action against him.  On 17 November 1994, the staff judge advocate found the discharge action legally sufficient.

9.  On 29 November 1994, his company commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance due to repeated failure of the AFPT.  His commander recommended an honorable discharge.

10.  Having been advised by consulting counsel, the applicant acknowledged that he had been counseled regarding the basis for the contemplated separation, its effects, and the rights available to him.  He was informed he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions.  He elected not to submit a statement in his own behalf.

11.  On 21 December 1994, the separation authority approved his separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and directed the characterization of his service as general, under honorable conditions.  

12.  On 4 January 1995, he was discharged accordingly.  His DD Form 214 shows in:

* item 24 (Character of Service) – Under Honorable Conditions (General)
* item 25 (Separation Authority) – Army Regulation 635-200, chapter 13
* item 28 (Narrative Reason for Separation) – Unsatisfactory Performance

13.  His records are void of evidence showing he appealed to the Army Discharge Review Board for an upgrade of his discharge within that board's     15-year statute of limitations.

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

	a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when in the commander's judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would 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.

2.  His contention that he received the incorrect service characterization was noted; however, the available evidence confirms he displayed a pattern of unsatisfactory performance by repeatedly failing his APFT.  Accordingly, his commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13.  The separation authority approved the recommendation for discharge and directed that his service be characterized as general, under honorable conditions.

3.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120003468



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ABCMR Record of Proceedings (cont)                                         AR20140001494



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