BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150000927 


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 upgrade of his general discharge.

2.  The applicant states he was separated with a general discharge because he couldn’t pass the Army Physical Fitness Test (APFT).  He couldn’t pass the APFT because he had been injured in a motor vehicle accident and had not been provided proper medical care.  He was supposed to have been promoted but was flagged after he was hurt.  If he had received proper medical care or been permitted an alternative to the APFT run he would have been able to pass.  

3.  The applicant provides no supporting documentation. 

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 and entered active duty, in pay grade E-2, on 3 October 1994.  He completed basic and advanced individual training as an artilleryman in military occupational specialty (MOS) 13C and was advanced to pay grade E-3 on 1 May 1995.  

3.  Between April 1995 and August 1996 he was counseled at least twenty times for incidents involving – 

* failure to follow the chain of command
* unmilitary behavior
* repeated APFT failures
* repeated bad checks and money management problems including failure to comply with settlement agreements with the local bank and the base exchange and the telephone company for $537 worth of telephone bills
* repeated absences from his place of duty
* needing constant supervision
* not carrying his share of the workload
* claiming he had a medical problem causing shortness of breath and going to sick call without obtaining documentation even after being counseled to do so
* disrespect to a noncommissioned officer (NCO) 
* willful disobedience of an NCO

4.  A 22 July 1996 Mental Status Evaluation reported the applicant exhibited normal behavior, was fully alert and oriented, displayed an unremarkable affect, clear thinking, normal thought content, and a good memory.  The examiner's impression was that the applicant had the mental capacity to understand and participate in the separation process, was mentally responsible, and met retention standards.  He was psychiatrically cleared for administrative action deemed appropriate by the command.

5.  A 6 August 1996 separation medical examination found him qualified for separation with a physical profile of 111111.

6.  On 25 August 1996, the applicant was notified of initiated separation action with a general discharge for unsatisfactory performance by being absent from his place of duty, continuous failure of the APFT, failure to pay just debts, and disrespect to an NCO.  The applicant was advised of his rights. 

7.  The applicant consulted with counsel and indicated he understood the basis for separation and his processing rights.  He declined to submit statements in his own behalf and indicated that he could expect to encounter substantial prejudice if he were separated with less than an honorable discharge.    
8.  The battery commander recommended separation with a general discharge for unsatisfactory performance.  The Staff Judge Advocate General found the discharge package legally sufficient and the separation authority approved the general discharge.

9.  On 26 September 1996, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  He had completed 1 year, 11 months, and 26 days of active service.

10.  Army Regulation 635-200 provides in:

   a.  Chapter 13 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 3-7 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.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was separated with a general discharge because he couldn’t pass the APFT.  He states if he had received proper medical care or been permitted an alternative to the run he would have passed.  

2.  The evidence of record clearly shows that failure to pass the APFT was not the only reason the applicant was discharged.  He also wrote bad checks, failed to live up to financial restitution agreements, repeatedly went to sick call without obtaining documentation that there was anything wrong with him, shirked his duties, was disrespectful, and was disobedient.  As a result the quality of his service was not fully honorable.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.

4.  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)                                         AR20150000927





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ABCMR Record of Proceedings (cont)                                         AR20150000927



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