IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011400 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011400 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011400 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 (GD) to an honorable discharge (HD). 2. The applicant states: a. he thinks he received improper punishment for missing a couple of formations; b. he was going through a divorce and under a lot of stress; and c. he was a decorated Soldier who would have received an honorable discharge within 4 days had it not been for his punishment. 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 (RA) on 1 November 1990. Upon completion of his initial entry training, he was awarded military occupational specialty 88M (Motor Transport Operator) and assigned to the 503rd Transportation Company in Germany. 3. The applicant's record reveals a disciplinary history that shows he received 15 formal records of counseling during the period 17 January 1992 to 12 March 1993, for a myriad of infractions that include the following: * APFT failure (twice) * failure to secure equipment * missing movement * below average job performance * late reporting for commitment * breaking quarters restrictions * failure to report for duty (4 times) * missing formation (4 times) 4. His record reveals he received non-judicial punishment (NJP) under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ) on: * 3 April 1992, for twice missing movement through neglect on 23 March and 30 March 1992 * 14 July 1992, for failing to go at the time prescribed to his appointed place of duty on 8 June 1992 and for damaging a five ton truck (property of the U. S. Government) by driving it into a concrete pillar on 8 June 1992 * 8 March 1993, for being absent without leave (AWOL) from his appointed place of duty on 19 January 1993 5. On 1 March 1993, the applicant underwent a mental status evaluation that showed: * his behavior and thought content were normal * he was fully alert and oriented * his mood was depressed * his thinking process was clear * his memory was good * he was mentally responsible * he had the mental capacity to understand and participate in separation proceedings * he had recurrent insomnia associated with depression * a mental health reevaluation was recommended 6. A Standard Form 88 (Report of Medical Examination) shows the applicant had ?recurrent insomnia associated with depression.? The attending physician recommended a mental health reevaluation and noted the applicant was medically qualified for administrative separation. No limiting profiles were noted. 7. On 16 March 1993, the unit commander notified the applicant he was initiating action to separate him from the Army for unsatisfactory performance with a GD. The unit commander cited the applicant's unsatisfactory performance evidenced by his failure to be at his appointed place of duty and substandard job and duty performance as the basis for his contemplated separation action. 8. The unit commander further notified the applicant of his rights to: * consult with appointed military counsel and/or civilian counsel at his own expense * obtain copies of documents that would be sent to the separation authority supporting the proposed separation action * submit a statement on his own behalf * waive his rights 9. On 16 March 1993, the applicant acknowledged receipt of the separation action, consulted with legal counsel, and was advised of the basis for the contemplated separation action and its effects. Subsequent to this counseling, he elected to submit a statement on his own behalf and he requested a copy of all documents forwarded to the separation authority. 10. On 22 March 1993, the applicant prepared a statement on his own behalf indicating: a. although he repeatedly missed formations and reported late to numerous commitments, his command/unit saw fit to issue him an award and certificates of achievement for his accomplishments as a Soldier; b. despite his many infractions, he believed he performed well as a Soldier in the U.S. Army; c. the issuance of a GD would result in his loss of $12,000.00 in G.I. Bill education benefits which he had invested $1,200.00 into during his initial year of enlisted service; and d. he would face severe prejudice and would be unable to appeal his GD character of service the first 6 months after his separation from the Army. 11. After a review for legal sufficiency, the separation authority approved the applicant's separation action, waived further rehabilitation requirements, and directed he receive a GD Certificate. 12. Accordingly, on 1 April 1993, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, with an under honorable conditions (general) character of service. He completed 2 years, 5 months, and 1 day of creditable active service. The DD Form 214 shows he was discharged by reason of unsatisfactory performance. His awards included the Army Achievement Medal, various service medals/ribbons, and qualification badges. 13. On 2 July 1998, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade. REFERENCES: Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel. a. Chapter 13 provided 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 Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the Soldier 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 would be characterized as honorable or under honorable conditions (general). 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: 1. The applicant contends that his GD should be upgraded to an HD. 2. The evidence of record confirms the applicant's administrative separation processing was accomplished in accordance with the applicable regulations. The applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf at the time. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. The applicant's record includes his acceptance of NJP on three separate occasions for twice missing movement, two AWOL offenses, and for damaging a five ton truck. It also contains 15 records of formal counseling received within a 14-month period for a myriad of infractions. The unit commander initiated the applicant's separation action and requested a waiver of additional rehabilitative measures because the applicant showed no improvement. The separation authority approved this request. There is no evidence of error or injustice in the characterization of service he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011400 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011400 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2