BOARD DATE:	  17 March 2015 

		DOCKET NUMBER:  AR20140012997 


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

2.  The applicant states he had two major surgeries that prevented him from passing his Army Physical Fitness Test (APFT).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three Operational Forms (OF) 275 (Medical Record Report), dictated 
5 October 1991, 14 December 1991, and 30 March 1992
* Standard Form (SF) 515 (Medical Record – Tissue Examination), dated 
7 October 1991
* two DA Forms 3647 (Inpatient Treatment Record Cover Sheet), dated 
8 November 1991 and 20 March 1992

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 29 August 1989 and held military occupational specialist 75B (Personnel Administration Specialist).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

3.  His DA Form 705 (APFT Scorecard) shows he failed a record APFT test on   9 July 1991, due to his failure during the 2-mile run event.

4.  His record contains a notification of entry in the weight control program, dated 26 July 1991, which informed him that if he failed to lose 3-8 pounds of weight per month, or failed to achieve the body weight standards within 6 months, he could be separated from the service.

5.  He provided a series of medical records showing:

	a.  On 4 October 1991, as a result of a diagnosis of bilateral gynecomastia, he underwent bilateral subcutaneous mastectomies.  The tissue samples taken from each of his breasts were consistent with his diagnosis of gynecomastia.  He was placed on convalescent leave for 28 days.

	b.  On 23 March 1992, he had surgery to remove a cyst from his right breast.  He was placed on convalescent leave for 21 days.

6.  His record contains a report of incident, dated 18 August 1992, which details his insubordinate conduct toward a noncommissioned officer (NCO).  

7.  On 10 September 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey an order given by an NCO and for displaying insubordinate conduct toward an NCO.

8.  Permanent Orders (PO) Number 318-00064, issued by Headquarters 101st Airborne Division, Fort Campbell, Kentucky on 13 November 1992, awarded him the Army Good Conduct Medal (1st Award) for the period 29 August 1989 through 28 August 1992.

9.  His DA Form 705 shows he failed record APFTs on 26 November 1992, due to his failure during the 2-mile run and pushup events, and on 10 February 1993, due to his failure during the 2-mile run event.

10.  His record contains a series of DA Forms 4856 (General Counseling Forms) which show:

	a.  On 30 November 1992, he was counseled for failing the APFT and height/weight standards in accordance with Army Regulation 600-9 (The Army Weight Control Program).

	b.  On 30 December 1992, he was counseled and informed he was flagged for failing the APFT and height/weight standards.  He was informed that if he failed the next APFT he would be separated from the Army.

	c.  On 10 February 1993, he was counseled because he failed another APFT. He was informed that paperwork would be initiated to separate him from the Army.

11.  His records contains a request for elimination packet, dated 17 February 1993, which shows his commander consulted with the Staff Judge Advocate/Legal Services Center, requested an elimination packet, and recommended the applicant be separated in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 (Separation for Unsatisfactory Performance).  His commander indicated he failed two consecutive APFT tests, had received counseling for being overweight, and had received a summarized Article 15.

12.  His record contains a DA Form 3822 (Report of Mental Status Evaluation), dated 9 March 1993.  This evaluation did not reveal any psychiatric or mental conditions or impairments.  Additionally, this form shows he had the mental capacity to understand and participate in proceedings, he was mentally responsible, he met retention standards, and he was psychiatrically cleared for any administrative action deemed appropriate by his command.

13.  His record contains A Standard Form (SF) 88 (Report of Medical Examination), dated 11 March 1993, which shows his physical profile (PULHES) contained a rating of "1" under each factor.  Furthermore, the examining physician indicated he was in physical category "A" and he was fully qualified for separation.

14.  On 13 April 1993, his commander notified him of his intent to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to failing to pass two consecutive record APFTs.  His commander informed him of his rights, and also informed him that he intended to recommend he receive an under honorable conditions (general) discharge.  On this same date, the applicant acknowledged receipt of the notification.

15.  On 14 April 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a general discharge, and of the rights available to him.  

16.  On 21 April 1993, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed he receive a General Discharge Certificate.  

17.  He was released from active duty on 28 April 1993, in accordance with Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  His DD Form 214 shows he received a general characterization of service.  His     DD Form 214 further shows he completed 3 years and 8 months of net active service during this period of active duty.   

18.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  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 contends his discharge should be upgraded because his surgeries prevented him from passing the APFT.  

2.  The evidence of record shows the applicant underwent two surgeries and was given periods of convalescent leave to recover.  There is no evidence and the applicant has not provided evidence that shows he was restricted from physical fitness by a profile or that he was medically unfit to participate in the APFT.  Furthermore, his separation physical shows he had a PULHES rating of "1" under each factor and the examining physician indicated he was in physical category "A."  This means he was medically fit and had no medical deficiencies or issues.

3.  The applicant received NJP under the provisions of Article 15 of the UCMJ for being disrespectful to an NCO and disobeying the orders of that same NCO.  It appears his commander, the legal office, and his chain of command took that misconduct into consideration when determining his character of service.

4.  There is no evidence of record and he has not provided any evidence to show his discharge was administratively incorrect or that he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.

5.  His record contains a history of failure to meet the Army's height and weight and APFT standards and an instance of misconduct that resulted in NJP.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20140012997





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ABCMR Record of Proceedings (cont)                                         AR20140012997



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