IN THE CASE OF:  	  

		BOARD DATE:  13 October 2015	  

		DOCKET NUMBER:  AR20150001879 


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, in effect, an upgrade of his general discharge under honorable conditions.

2.  The applicant states:

* he completed all his duties and more while serving on active duty
* he is responsible for his physical fitness test

3.  The applicant provides no 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 11 February 1987 for a period of 4 years.  He completed his training and was awarded military occupational specialty 16T (Patriot missile crewmember).

3.  On 5 January 1989, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order to stop fighting.

4.  On 29 June 1989, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

5.  He was counseled for:

* an outstanding debt
* missing formations
* failing to report for extra training (two specifications)
* fighting another Soldier and disobeying two orders
* inability to pass a physical fitness test
* missing remedial physical training (three specifications)

6.  On 13 September 1989, he was notified of his pending separation for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  His unit commander cited the following reasons for the proposed action:

* numerous failures to report
* willful disobedience and insubordination
* failing to pass a physical fitness test
* being overweight
* failing to make satisfactory progress

7.  On 29 September 1989, he consulted with counsel, waived his rights, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

8.  On 27 October 1989, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

9.  On 7 November 1989, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed a total of 2 years, 8 months, and 27 days of creditable active service.

10.  In January 1992, the Army Discharge Review Board denied his request for an honorable discharge.

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

	a.  Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  Service of Soldiers separated because of unsatisfactory performance under this chapter would 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 record of service included adverse counseling statements and two NJPs.  As a result, his quality of service was not sufficiently meritorious to warrant an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is insufficient evidence 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 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)                                         AR20150001879



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ABCMR Record of Proceedings (cont)                                         AR20150001879



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