BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140020409 


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.  The applicant states he received unfair treatment by his leadership.  He was a private first class in the U.S. Army and one of the best troops.  He qualified to shoot a Redeye (a missile).  After his discharge he obtained his bachelor’s degree in information technology and his master’s degree in business management from Duke University.  

3.  The applicant does not provide any additional evidence. 

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 21 September 1988.  After completing initial entry training, he was awarded military occupational specialty 16S (Man Portable Air Defense System Crewmember).

3.  Records show he received counseling on several occasions for:

* failure to shave
* being absent from formation
* parking violation
* indebtness
* being involved in a domestic incident
* failure to report to duty

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 12 July 1989 and 15 February 1990, for failure to go to appointed place of duty
* 4 April 1990, for assault

5.  On 9 July 1990, he was notified of the unit commander's intent to initiate separation action against him for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  The commander stated the action was based on numerous failures to repair (FTR), letters of indebtness, bad checks, and    Article 15s.  The commander stated that rehabilitation was not in the best         interest of the U.S. Army as it would not produce a quality Soldier.

6.  On 10 July 1990, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He elected to make a statement; however, his statement was not found in his records.

7.  On 10 July 1990, an authorized official approved his discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a GD Certificate.

8.  On 9 August 1990, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 years, 10 months, and 19 days of creditable active military service.

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

10.  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 request for upgrade of his GD was carefully considered; however, there was insufficient evidence to support his request.

2.  He received NJP on three occasions, and he was counseled regarding behavior that included indebtness and being involved in a domestic incident.  His chain of command was 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 did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His GD is commensurate with his overall record of military service.  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)                                         AR20140020409





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ABCMR Record of Proceedings (cont)                                         AR20140020409



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