IN THE CASE OF:	 

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150002319 


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, the widow of the deceased former service member (FSM) requests correction of the FSM’s military record to show he was discharged as a private first class (PFC), pay grade E-3 with an honorable characterization of service.

2.  The applicant states that all of the FSM’s records show he was a PFC.  The applicant further contends that the FSM’s records do not show his performance of duty was unsatisfactory on a repetitive basis.  No charges were ever brought against him.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) Member Copy 1
* Marriage Certificate, State of Georgia, dated 25 July 1997
* Certificate of Death, State of Georgia, issued 27 February 2014

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.  On 11 May 1989, the FSM enlisted in the Regular Army.  He was trained as a light wheel vehicle mechanic.  On 22 November 1989, he was assigned for duty as a wheel vehicle mechanic at Fort Stewart, Georgia.

3.  The FSM’s DA Form 2-1 (Personnel Qualification Record – Part II) indicates that he was advanced to private, pay grade E-2 on 11 November 1989.

4.  The FSM’s DA Form 2A Personnel Qualification Record - Part I) prepared on 18 December 1990 indicates that he was advanced to PFC with a date of rank of 1 October 1990.

5.  On 4 November 1990, the FSM, who was addressed as a PFC, was notified by his company commander that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) chapter 13, due to unsatisfactory performance.  The FSM acknowledged the commander’s letter of notification that same day.

6.  On 4 November 1990, the FSM consulted with legal counsel and elected to make a statement in his own behalf.  In his statement, he concurred with the commander’s recommendation to separate him from the U.S. Army for unsatisfactory performance because he had a history of sleep walking which he believed made him unqualified for further military service.  He related how it was reported to him that during one of his sleep-walking incidents, he stabbed another Soldier in the wrist.  He felt he would continue to be a disruptive influence on the unit.  He also stated that he had been orally counseled several times about his poor duty performance and poor military bearing.  He said he was a good mechanic but not a good Soldier.  He requested the command waive all rehabilitation requirements because he felt he could not Soldier his way out of the situation.  He also declined a medical and psychological evaluation prior to discharge.

7.  On 4 November 1990, the commander submitted his recommendation to separate the FSM from the U.S. Army, as discussed above, through the battalion commander to the brigade commander.

8.  The appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.
9.  A DA Form 3822 (Report of Mental Status Evaluation) dated 28 November 1990, shows the FSM underwent a mental status evaluation wherein his behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible and capable of understanding and participating in the separation processing.

10.  A DA Form 268 (Report to suspend Favorable Personnel Actions (FLAG), dated 29 November 1990, indicates a flag was initiated effective the same day for the purpose of elimination.  The FSM’s rank on this document is private, pay grade E-2.

11.  A DA Form 4126 (Bar to Reenlistment Certificate) undated, indicates that the FSM was a private, pay grade E-2.  The FSM signed this form on 3 December 1990 and indicated he was advised of the basis for this action, was given a copy of the document, and did not want to make a statement.

12.  Orders 248-11, Fort Stewart, Georgia, dated 19 December 1990, announced the FSM’s reassignment to the U.S. Army Transition Point for processing.  This order indicated his rank as PFC, pay grade E-3.  He was given a report date of 
4 January 1991 for discharge.

13.  Orders 2-5, Fort Stewart, Georgia, dated 3 January 1991, amended Orders 248-11, as discussed in the previous paragraph, to change his rank to private, pay grade E-2.

14.  On 4 January 1991, the FSM was discharged accordingly.  His DD Form 214 shows he completed 1 year, 7 months and 24 days of net active service this period active duty service.  His rank is shown as private, pay grade E-2.  His characterization of service was general, under honorable conditions.

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

16.  Army Regulation 600-200 (Enlisted Personnel Management System), as then in effect, provided for the automatic advancement of Soldiers from private, pay grade E-1 to private, pay grade E-2 upon completion of 6 months active duty, unless action was taken by the commander to deny such advancement.  This regulation also provided that advancement to PFC, pay grade E-3 was not mandatory.  Commanders were authorized to advance Soldiers to PFC who were qualified and had completed 12 months in service and 4 months in grade as a private, pay grade E-2.
17.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b, provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
   
18.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM’s military record should be corrected to show he was discharged as a PFC, pay grade E-3 with an honorable characterization of service.

2.  The available evidence of record shows that the FSM admitted to being counseled several times about his poor performance of duty.  He admitted his performance was not good and that he felt he could not Soldier his way out of the situation.

3.  The FSM’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. There is an insufficient evidentiary basis for granting the FSM a fully honorable discharge.

4.  The available evidence of record indicates that the FSM was automatically advanced to private, pay grade E-2 at the 6-month point of his service, on 
11 November 1989.  His eligibility for advancement, without waiver, to PFC was no earlier than 11 May 1990.  His DA Form 2A indicates he was advanced to PFC on 1 October 1990.  The separation packet refers to the FSM as a PFC, as does DA Form 3822.  However, a DA Form 268 dated 29 November 1990 and a DA Form 2126, dated 3 December 1990, both show his rank as private, pay grade E-2.  Also, his separation orders were amended to change his rank from PFC to Private, pay grade E-2.  These deliberate actions strongly indicate that either the FSM’s advancement to PFC was erroneous, or he was reduced for cause.  Unfortunately, the available evidence of record is not sufficient to make any determination, with a reasonable degree of certainty, of what rank the FSM really held at the time of his discharge.  Therefore, it would be appropriate to presume administrative regularity concerning this issue and not change the record.

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)                                         AR20150002319





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ABCMR Record of Proceedings (cont)                                         AR20150002319



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