IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150011783 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 August 2016 DOCKET NUMBER: AR20150011783 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 August 2016 DOCKET NUMBER: AR20150011783 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: a. He was 19 years of age when he joined the military. He feels that he served well up until the day he was late for a 0600 hours formation. He had never been late before. For that infraction he received an Article 15 and was reduced in rank. At the time it was a big blow for him because it was his second enlistment and he was up for promotion. He knew that if he was no longer specialist he would not be considered by a sergeant promotion board. He was disillusioned and requested a discharge. His unit commander and first sergeant thought highly of him and wanted to retain him. Unfortunately, he had a negative attitude. He was making so little money while his sister was making a lot of money in a family business. She had invited him to join her and he decided that it was what he wanted to do. As a result, he made some poor decisions concerning his military service. b. Although he was in good physical shape and assisted other Soldiers in passing their Army Physical Fitness Test (APFT), he realized that if he failed his APFT he could be administratively discharged with an honorable discharge. He did not understand that he could have requested help, or sought a proper discharge, or joined the Reserve component. Due to President Clinton downsizing the military in 1994, there were probably many options to get out of the service that he did not know about. Without his command's support, he decided he would intentionally fail his APFT. Discharge paperwork was initiated after he failed his second APFT. Because his chain of command knew he was intentionally making an effort to be discharged, they pursued a general discharge rather than an honorable discharge. He continued to do his best as a power generator mechanic not causing any further problems beyond failing his APFT up until the date of his discharge. c. At the time he did not know of another way to obtain a discharge. He was young, immature, and made poor decisions which have affected his entire life. He served 4 years. He was stationed in Germany and served in Desert Storm then returned to Germany as part of the North Atlantic Treaty Organization forces. He trained in Italy, Turkey, and England. Although not reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty), he earned the Army Good Conduct Medal, Driver and Mechanic Badges, and two awards of the Army Achievement Medal. He feels it was an injustice for him to receive a general discharge because it had such a significant impact on his entire adult life. He has lived with the consequences of his actions. He would also like to think that he provided honorable service to his country by eventually returning to Afghanistan as a private contractor to support the military. He feels that he has certainly paid for the mistakes he made. It is important for him that his entire record reflect the good service he provided for his country rather than the last few months of his service. 3. The applicant provides two DA Forms 638-1 (Recommendation for Award (Other Than Valor) of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal), two Army Achievement Medal Certificates, Driver (Wheeled) and Mechanics Badges orders, Army Good Conduct Medal orders and certificate, and DD Form 214. 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 the cases 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. 2. The applicant enlisted in the Regular Army (RA) on 2 August 1990. At the time of his enlistment he was 19 years and 7 months of age. He held military occupational specialty 52D (Power Generation Equipment Repairer). He served in Germany from 6 January 1991 through 23 January 1991, in Saudi Arabia from 24 January 1991 through 3 May 1991, and then in Germany from 4 May 1991 to 4 November 1993. 3. He was promoted to pay grade E-4 on 1 April 1992. He reenlisted in the RA on 16 September 1993. 4. He provided: * DA Form 638, dated 9 September 1993, awarding him the Army Achievement Medal for meritorious service from 6 January 1991 through 5 November 1993; the award was approved by Permanent Order (PO) Number 106-9 on 5 October 1993 * DA Form 638, dated 20 September 1993, awarding him the Army Achievement Medal for meritorious achievement from June 1993 through October 1993; the award was approved by PO Number 101-12 on 24 September 1993 * PO Number 107-19, dated 6 October 1993, awarding him the Mechanic Badge * PO Number 110-8, dated 13 October 1993, awarding him the Driver (Wheeled) Badge * PO Number 038-00023, issued by Headquarters, U.S. Army Field Artillery Center on 2 March 1994, awarding him the Army Good Conduct Medal for the period of service from 2 August 1990 through 1 August 1993 5. On 9 May 1994, he received counseling for failing to report to a 0600 hours formation. He was told he could be separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separation), chapter 13 or 14, with a general discharge. 6. On 16 May 1994, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 9 May 1994. His punishment consisted of a reduction to pay grade E-3, a suspended forfeiture, and 14 days of extra duty and restriction. His appeal was denied on 10 June 1994. 7. He received counseling on/for: * 21 July 1994 – failing the record APFT * 25 August 1994 – failing to report to work call formation * 26 August 1994 – misconduct and his company commander's recommendation for a chapter 13 separation based on patterns of misconduct 8. A DA Form 705 (APFT Test Scorecard) shows he failed his test on 16 August 1994. 9. On 16 August 1994, a bar to reenlistment was initiated for his NJP action, lack of potential, and two record APFT failures. The bar was approved on 17 August 1994. 10. A DA Form 3822-R (Report of Mental Status Evaluation), dated 7 September 1994, shows he was psychiatrically cleared for any administrative separation deemed appropriate by the command. He met the retention standards of chapter 3, AR 40-501 (Standards of Medical Fitness). 11. On 12 September 1994, the applicant’s company commander initiated action to separate him under the provisions of AR 635-200, chapter 13, with a general discharge. He stated the reason for the proposed action was the applicant's three consecutive APFTs failures. He advised the applicant of his rights. 12. On 13 September 1994, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action. He also acknowledged he could receive a general discharge and the results of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. His company commander recommended the applicant's discharge on the same date. 13. On 19 September 1994 the separation authority approved the applicant’s discharge and directed the issuance of a general discharge. 14. He was discharged accordingly in pay grade E-3 on 23 September 1994. He completed 4 years, 1 month, and 22 days of active service. At the time of his discharge he was 23 years and 9 months of age. His DD Form 214 lists the: * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 15. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his general discharge. REFERENCES: AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. a. Paragraph 13-2 – Commanders would separate a Soldier for unsatisfactory performance when it was clearly established that the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. The seriousness of the circumstances was such that the Soldier’s retention would have an adverse impact on military discipline, good order, and morale. The service of Soldiers separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records. b. Paragraph 3-7a – An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. DISCUSSION: 1. The evidence shows the applicant could not or would not meet acceptable standards required of enlisted personnel as evidenced by his continued APFT failures. He received counseling for failing his APFT and was advised he could receive a chapter 13 administrative discharge. Based on his continued APFT failures, his commander initiated action to separate him under chapter 13, AR 635-200 for unsatisfactory performance. The separation authority approved his discharge and directed the issuance of a general discharge. He was discharged accordingly on 23 September 1994. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case. 3. His contention that he was young at the time was also considered. His remorsefulness poor his poor decisions is also noted. He was 19 years and 7 months of age at the time of his initial enlistment and 23 years and 9 months at the time of his discharge. There is no evidence he was any less mature than any other Soldier who successfully completed their term of enlistment. 4. He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would qualify him for an upgrade of his discharge. His APFT failures and failure to maintain necessary Army standards clearly diminished the overall quality of his service below that meriting a fully honorable discharge. There is no provision of law or regulation that allows for the upgrading of a discharge based on the passage of time and one’s remorsefulness for poor decisions made during their military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011783 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011783 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2