BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20160001106 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: 11 July 2017 DOCKET NUMBER: AR20160001106 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: 11 July 2017 DOCKET NUMBER: AR20160001106 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. 2.  The applicant states his father had a serious medical condition and he was not allowed to go home. When he questioned this situation, he was given an unsatisfactory performance discharge. 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 25 February 1986 and held military occupational specialty 16S (Man Portable Air Defense System). He served in Germany from 24 June 1986 to 24 April 1988. 3.  His records show his chain of command frequently counseled him for various infractions. These included: * failure to follow instructions and missing formations * multiple instances of writing bad checks * multiple letters of indebtedness 4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on: * 15 October 1987, for being disrespectful toward a commissioned officer * 11 December 1987, for being disrespectful in language toward a noncommissioned officer and for assaulting the same noncommissioned officer * 2 March 1988, for feigning illness to avoid his duty as a guard, for intentionally consuming alcoholic beverages, and for abandoning his guard duty without authority 5.  On 29 March 1988, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance. The immediate commander stated that despite repeated counseling, the applicant was unable to perform his required duties. 6.  On 29 March 1988, the applicant acknowledged notification of the proposed separation action. He subsequently consulted with legal counsel. He acknowledged that: * he had been advised of the basis for the contemplated separation action under the provisions of chapter 13 of AR 635-200 * he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * he elected to submit a statement in his own behalf (not available for review) * he may apply to the Army Discharge Review Board or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life 7.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the provisions of chapter 13 of AR 635-200 due to unsatisfactory performance. 8.  The separation authority reviewed the separation action; waived further rehabilitation requirements; approved the applicant's discharge under the provisions of AR 635-200, chapter 13; and directed that his service be characterized as under honorable conditions with issuance of a General Discharge Certificate. On 25 April 1989, the applicant was discharged accordingly. 9.  His DD Form 214 shows he was discharged under honorable conditions (general) under the provisions of chapter 13 of AR 635-200, due to unsatisfactory performance. He had completed a total of 2 years, 2 months, and 1 day of creditable active military service. He was awarded or authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar * Army Achievement Medal 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: 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 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. A general or honorable discharge was considered appropriate. 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 and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards. Accordingly, his immediate commander initiated separation action against him for unsatisfactory performance. 2.  His separation appears to have been accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service. The reason for discharge and the characterization of service were both proper and equitable. 3.  His chain of command did not consider the quality of his service to have met the standards of acceptable conduct and performance of duty for Army personnel or that it was otherwise so meritorious that any other characterization would be clearly inappropriate. As a result, he received a general discharge. 4.  He has not provided evidence to show an error or an injustice occurred in the processing of his separation or a reason to upgrade his general discharge to a fully honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001106 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001106 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2