IN THE CASE OF:  	

		BOARD DATE:  30 July 2015	 

		DOCKET NUMBER:  AR20140020454


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 characterization from under honorable conditions (general) to honorable.

2.  The applicant states:

   a.  He was under emotional stress at the time of his discharge because his wife took his two kids and went back to their home town of Phoenix, Arizona.  He spoke to his first sergeant and company commander and it was determined that this discharge [which he ultimately received] was the best way for him to get out of the Army and back home to his young family. 
   
   b.  Although he did not complete his first full term of service, he believes his discharge should be changed from an under honorable conditions (general) discharge to an honorable discharge because he was a good Soldier, he received the Army Achievement Medal, and since his discharge he has completed his Bachelor's degree and has been a model citizen.

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.  The applicant enlisted in the Regular Army on 4 June 1993.  After completing his initial entry training, he was awarded military occupational specialty 12B (Combat Engineer).  Following the completion of his initial entry training, he was assigned to Company A, 70th Engineer Battalion, Fort Riley, Kansas.  

3.  He was promoted to the rank/grade of private/E-2 on 4 February 1993.

4.  He was formally counseled on 7 June 1994 for disrespecting a noncommissioned officer (NCO) during the unit's National Training Center exercise rotation in May 1994.

5.  He was promoted to the rank/grade of private first class/E-3 on 1 August 1994.

6.  His record contains a memorandum, dated 14 February 1995, addressed to his company commander by an Alcohol and Drug Control Officer from the Fort Riley Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) office, which identifies the applicant as an ADAPCP candidate based on medical identification by staff at the Clinical Psychology Services department, Fort Irwin Army Community Hospital, Fort Irwin, California. 

7.  His record contains an official email from his brigade S-1 (Personnel), dated 26 April 1995, which summarized his involvement in a traffic accident on post on 25 April 1995, while operating a government vehicle.  According to the summary, he was cited by military police for inattentive driving and for driving without a valid operator's license in his possession.  He was apprehended and transported to the Provost Marshal's Office, where he was processed and released to his unit. 

8.  His record documents a history of adverse counseling sessions:

	a.  on 29 June 1995, for being arrested for burglary on 22 June 1995, and for being arrested for domestic violence on 24 June 1995;


	b.  on 19 September 1995, for accusations of "messing with a minor" and breaking into an automobile;

   c.  on 2 November 1995, for failing his financial obligations by failing to make a required payment to his Deferred Payment Plan account; and

	d.  on 20 November 1995, for failing his financial obligations by failing to make a required payment to a creditor.

9.  The applicant's immediate commander notified him on 16 January 1996 of his intent to initiate separation action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsatisfactory performance.  

10.  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.

11.  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.

12.  The separation authority approved his discharge on 25 January 1996, under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The separation authority directed the applicant receive an under honorable conditions (general) discharge.

13.  The applicant was discharged accordingly on 6 February 1996.  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.

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

15.  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 discharge characterization from under honorable conditions (general) to honorable was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's duty performance was sub-standard, as documented by numerous adverse counseling statements for issues with civilian law enforcement, non-compliance with Army standards, ADAPCP issues, and failure to maintain his financial obligations.  In general, he had difficulty adapting to his chain of command's expectations once he arrived at Fort Riley.  

3.  His record shows his chain of command 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.






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)                                         AR20140020454



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