BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002547 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: 14 September 2017 DOCKET NUMBER: AR20160002547 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: 14 September 2017 DOCKET NUMBER: AR20160002547 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 under honorable conditions to honorable. 2. The applicant states: a. He volunteered to serve in the Army as a military policeman and served with honor. He went through a very hard time in his life involving divorce. His mind was not on the military at the time and his physical conditioning suffered. His ex-wife had an abortion, but had told him she had a miscarriage. He was working a desk position at the time and requested reassignment to a more physically demanding job, but it was denied, further causing him to lapse. b. Since his discharge, he feels he's worked jobs that have shown he deserves an honorable discharge. He guarded nuclear power plants. He worked at the gates of Fort Huachuca as an armed guard, controlling access to the post. He worked as a full-time firefighter paramedic and then as a paramedic on Fort Huachuca, protecting the military members and their families by providing emergency medical response to save lives. c. He served over half of his original enlistment, earning letters of commendation, and was on recall status until 2000. Therefore, he feels a change from a general discharge to an honorable discharge is not completely out of the question. He did not have any negative actions against him during his time in service. 3. The applicant provides his 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 on 19 November 1992. 3. His records contain a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), which shows a transferable flag was initiated against the applicant effective 12 September 1995 for Army Physical Fitness Test (APFT) failure. 4. His records contain two DA Forms 4856 (General Counseling Form) documenting counseling the applicant received on 12 September 1995 and 7 February 1996 for twice failing his record APFT. The 12 September 1995 counseling form advised him of his participation in the unit's special fitness program held 5 days per week subsequent to his APFT failure, which would be tailored to his specific weaknesses. He was also informed he could be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance if he failed a second APFT. The 7 February 1996 form shows he was counseled for the second APFT failure and informed he would be recommended for separation for unsatisfactory performance and not meeting the Army height and weight standards. 5. A Report of Mental Status Evaluation, dated 21 July 1986, rated him as having normal behavior, being fully alert and fully oriented, displaying unremarkable mood or affect, thinking clearly with normal thought content, having good memory, and having the mental capacity to understand and participate in the separation proceedings. 6. In an undated memorandum, his company commander recommended his separation for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. His commander determined he would not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier. 7. On 2 May 1996, he acknowledged he had been advised of the basis for the contemplated separation action. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran as the result of the issuance of a discharge under other than honorable conditions. He did not waive representation by counsel and he submitted a statement in his own behalf. 8. In his statement, he wrote he served with pride and distinction as a military policeman and enjoyed his military service. He never received any complaints about the manner in which he did his job. His only trouble arose from physical training. When he was placed in the position of radio telephone operator and placed on 12-hour shifts with erratic days off in July 1995, it became increasingly difficult to maintain a good physical training program. This led to several Soldiers failing their APFTs. He made several requests to be removed from the job and placed back on patrol duty, as he was able to maintain a passing APFT score in that job. His request was denied, but he felt he would complete his time in service with great pride and distinction if he were given the opportunity to do so. If not allowed to continue his service, he should at least receive an honorable discharge for his good deeds and service record. 9. The separation authority approved the applicant's discharge for unsatisfactory performance under the provisions of Army Regulation 635-200 and directed the issuance of a General Discharge Certificate. He was discharged accordingly on 12 June 1996. His DD Form 214 shows he completed 3 years, 6 months, and 12 days of active service. 10. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines 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. The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records. 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 evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his failure of two record APFTs. 2. His administrative discharge was accomplished in compliance with the applicable regulation without procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The separation authority determined his service did not rise to the level required to characterize his service as honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002547 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002547 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2