AR20150009263

IN THE CASE OF:

BOARD DATE: 14 January 2016

DOCKET NUMBER: AR20150009263

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 to an honorable discharge.

2. The applicant states:

* during his time of discharge he was in so much pain he was asked to leave; he had a car accident the month before and he was unable to perform his duties but his superiors were asking him to do his duties
* he never intended to be insubordinate but he was in so much pain and was unable to do what was needed
* he now receives disability benefits from the Department of Veterans Affairs (VA) due to the car accident
* since discharge, he went to school and got a degree in nursing and worked for many years as a home care provider and later in catering
* he is currently in school for hospitality so that he can start his own business and an upgrade would help

3. The applicant provides:

* Letter from the National Personnel Records Center
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlistment Contract
* DA Form 2-1 (Personnel Qualification Record)
* Article 15 and counseling forms
* Separation orders
CONSIDERATION OF EVIDENCE:

1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3years 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 12 June 1991 and he held military occupational specialty 94B (Food Service Specialist). He was assigned to Fort Sill, OK.

3. He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4. He was frequently counseled by members of his chain of command for various infractions including:

* disobeying orders
* being absent from appointed place of duty and/or missing formations
* extensive history of failure to report and being late to duty
* reporting to duty with an ear ring
* leaving the scene of an accident
* operating a vehicle after having been drinking and not having insurance on vehicle
* being absent without leave
* insubordination

5. On 3 March 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty. He was reduced to E-1.

6. On 5 March 1992, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his continued misconduct. The applicant was furnished with a copy of this bar but elected not to submit a statement on his own behalf. The bar was ultimately approved.
7. On 24 March 1992, the applicants immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance. The immediate commander cited the applicant’s substandard duty performance and recommended the issuance of a general discharge.

8. On 24 March 1992, the applicant acknowledged receipt of the commander’s notification of intention to separate him and he consulted with legal counsel. He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive, and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He further acknowledged he understood that:

* he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* if he was issued an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran
* he could also encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge
* he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; however, an act of consideration did not mean his discharge would be upgraded

9. The applicants immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance. The immediate commander recommended issuance of a general discharge.

10. The separation authority approved the separation action and ordered the applicants discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed she be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 30 March 1992.

11. The DD Form 214 he was issued shows he was discharged in accordance with chapter 13 of Army Regulation 635-200 with a characterization of service of under honorable conditions (general) and he completed a total of 9 months and 19 days of creditable military service.

12. There is no indication he petitioned the ADRB for a review of his discharge within that board’s 15 year statute of limitations.
13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commanders judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. Paragraph 3-7a states 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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his extensive history of negative counseling, Article 15, and bar to reenlistment. He displayed substandard performance and appears to have been unable to conform to Army standards.

2. It appears he was given ample time to comply with the standards through counseling but he was unable to conform to the standards. His substandard performance left his command with no other option but to discharge him. Accordingly, his immediate commander initiated separation action against him.

3. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There is no evidence of error in the characterization of service he received.

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) AR20150009263

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont) AR20150009263

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