IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007647 


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 (GD) to an honorable discharge (HD).

2.  He states, in effect, he was:

* having medical issues from something he caught in Operation Desert Storm/Desert Shield
* having problems passing a physical fitness test
* receiving “Honorable status” from the Department of Veterans Affairs (VA)  and assumed his discharge was changed

3.  He provides no additional documentation 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 8 August 1989, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 16S (Man Portable Air Defense System Crewmember).  He continued his service through two reenlistments.  He was promoted to specialist/E-4 effective 1 September 1991.  He deployed to Southwest Asia (SWA) in 1991.

3.  He was counseled regarding his performance on:

* 6 December 1994 – for disrespect to a noncommissioned officer (NCO)
* 18 January 1995 – for lying to a platoon sergeant and forging official documents
* 13 September 1995 – for failure to have equipment ready for duty

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ) on the following occasions:
 
* 14 December 1994 for being disrespectful in deportment to an NCO
* 31 January 1995 for making false statements with intent to deceive

5.  On 19 October 1995, he underwent a psychiatric evaluation.  He was diagnosed with "occupational problems" but had no significant psychiatric disease/disorder noted.  He was cleared for any action deemed appropriate by his chain of command.

6.  On 14 November 1995, his commander informed the applicant he was initiating action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-2.  His commander stated the reason for the proposed action was that the applicant had received an Article 15 for being disrespectful in deportment towards an NCO and for making a false official statement.  In addition, the applicant was counseled for being disrespectful, making a false statement, failing to pass a physical fitness test, and failing to make satisfactory progress while enrolled in the Army Weight Control Program.  His commander informed him he was recommending that he receive a GD.  His commander informed him of his rights.

7.  On 20 November 1995, he was advised by counsel of the basis for his contemplated separation, its effects, and the rights available to him.
8.  After consulting with counsel, he elected not to submit statements in his own behalf.  He requested a personal appearance before an administrative separation board.  He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a GD was issued to him.

9.  On 20 November 1995, the applicant requested a conditional waiver, voluntarily waiving consideration by an administrative board, contingent upon receiving a characterization of service or description of separation no less favorable than honorable.  The waiver was denied on 7 December 1995, and his case was referred to an administrative separation board.

10.  The Administrative Separation Board found the applicant had performed unsatisfactorily and separation was warranted.  The board recommended the applicant be separated with a GD.

11.  On 12 February 1996, following a review that found the elimination action to be administratively correct, 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 GD Certificate.

12.  On 22 February 1996, the applicant was discharged in accordance with the separation authority's decision.

13.  The available records show no evidence of any medical conditions incurred while serving in SWA.

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

	a.  Chapter 13 of this regulation 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 HD 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 argument that he caught something while serving in SWA that affected his ability to serve has been considered.  There is no evidence nor does he provide any that indicates he was treated for any medical condition while deployed.

2.  He received NJP on two occasions, and he was counseled regarding behavior that included disrespect to an NCO and forging official documents.  His chain of command and the Administrative Separation Board were justified in determining that his performance was unsatisfactory and warranted discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on his record of indiscipline, 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 HD.

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)                                         AR20140007647





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007647



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1