BOARD DATE: 15 December 2015 DOCKET NUMBER: AR20150005282 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, in effect, an upgrade of his under honorable conditions (general) discharge. 2. The applicant states there were conflicting styles of leadership in his unit. As an E-5, he would be the responsible person. 3. The applicant does not provide any 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 on 18 March 1981 and he held military occupational specialty 35R (Avionics Special Equipment Repairer). He reenlisted on 14 June 1985. 3. He served in Korea from December 1981 to December 1982 and he was promoted to specialist five/E-5. He was laterally appointed to sergeant/E-5 on 2 December 1983. 4. He was frequently counseled by members of his chain of command for various infractions including: * displaying a negative attitude * poor performance * insubordination * failing to follow instructions * being disrespectful * a lack of initiative, self-discipline, and job proficiency * verbally abusing senior noncommissioned officers * disobeying orders 5. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 22 April 1987 for willfully disobeying a lawful order. 6. On 21 October 1988, 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 635-200 (Personnel Separations) by reason of unsatisfactory performance. The immediate commander recommended the issuance of a general discharge. 7. On 21 October 1988, 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 requested consideration of his case by a board of officers and personal appearance before a board of officers. 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 8. On 21 October 1988, the applicant’s 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. 9. On 19 January 1989, a board of officers convened at Headquarters and Headquarters Command, Hunter Army Airfield, GA, to consider if the applicant should be separated. The applicant was present with his counsel. The board of officers found the applicant undesirable for retention in the Army by reason of unsatisfactory performance and that his rehabilitation was not deemed possible. The board of officers recommended his discharge from the Army with a general discharge. 10. On 9 February 1989, the convening/separation authority approved the findings and recommendations of the board of officers and ordered the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed he be furnished a General Discharge Certificate. Accordingly, the applicant was discharged on 21 March 1989. 11. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged on 21 March 1989 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 8 years and 4 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. 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. 14. 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance as evidenced by his history of negative counseling and nonjudicial punishment. He displayed substandard performance and appears to have been unable to conform to the military or ensure his responsibility to meet 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, which demonstrated a lack of self-discipline and lack of initiative, appears to have left 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) AR20150005282 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005282 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1