BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018321 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 BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018321 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. BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018321 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: * his discharge was inequitable because he was experiencing a tremendous family hardship at the time * he was also discharged after having completed 3 years and 10 months of his 4-year commitment * during the discharge, he was told in great detail that his discharge would not change; he now has no benefits and no GI Bill 3. The applicant provides: * Certified Law Enforcement Officer Diploma * Basic Peace Officer Certification Card * The Gospel Ministry Certificate of License * Bachelor of Science in Criminal Justice Diploma * Probation Officer Card and Badge * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 for 4 years on 8 May 1989. He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic). 3. He served in Hawaii from 1 December 1989 to 16 October 1991. He was assigned to B Company, 84th Engineer Battalion, Schofield Barracks. Following this tour, he was assigned to the 507th Medical Company, Fort Sam Houston, TX. 4. He was frequently counseled by members of his chain of command for various infractions to include: * failing to be at formation and/or physical training * being absent from or late to his appointed place of duty * substandard performance * failure to follow orders and multiple instances of failure to repair * wearing an unserviceable uniform * conduct and behavior issues in the barracks * repeated instances of misconduct * violation of company policies 5. On 17 April 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two instances of failing to go at the time prescribed to his appointed place of duty and being derelict in the performance of his duties. His punishment consisted of a suspended reduction to pay grade E-2. 6. On 30 April 1992, the suspension of his reduction to pay grade E-2 was vacated and ordered executed after he committed an assault in violation of Article 128, UCMJ. 7. On 20 November 1992, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his continued misconduct. The applicant was furnished a copy and submitted a statement indicating that he knew he was in violation of policies and regulations, but he would change his attitude and make an effort. The approving authority ultimately approved the bar. 8. On 19 January 1993, he again accepted NJP under the provisions of Article 15, UCMJ, for three separate instances of failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to pay grade E-2 and 30 days of extra duty. 9. On 9 February 1993, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations) by reason of unsatisfactory performance. The immediate commander cited the applicant's continued demonstration of unsatisfactory performance and recommended the issuance of a general discharge. 10. On 9 February 1993, 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 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 11. The applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 by reason of unsatisfactory performance. 12. On 26 February 1993, the separation authority approved the separation action and ordered the applicant’s discharge under the provisions of AR 635-200 by reason of unsatisfactory performance and directed that he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 28 March 1993. 13. The DD Form 214 he was issued shows he was discharged in accordance with chapter 13 of AR 635-200 with a characterization of service of under honorable conditions (general) and he completed a total of 3 years, 10 months and 19 days of active creditable military service. 14. There is no indication he petitioned the ADRB for a review of his discharge within that board's 15 year statute of limitations. 15. He provides post-service certificates, diplomas, and certifications showing self-improvement. REFERENCES: AR 635-200 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, in pertinent part, 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 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: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his extensive history of negative counseling, two Article 15s, and bar to reenlistment. He displayed substandard performance and appears to have been unable to conform to Army standards. 2. It appears 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018321 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018321 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2