IN THE CASE OF: BOARD DATE: 8 January 2009 DOCKET NUMBER: AR20080016873 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 that his general discharge (GD) be upgraded to an honorable discharge (HD). 2. The applicant states that he was very immature while he was on active duty. He had not been ready to be on active duty and just wanted to go home. He adds that he has never been in any trouble while on active duty or with civilian authorities after his discharge. 3. The applicant provides a North Carolina criminal record search, his separation document (DD Form 214), and three letters of reference. 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's military records show that he enlisted in the Regular Army on 8 November 1988 and was awarded the military occupational specialty of infantryman. 3. The applicant was counseled on a regular basis on his performance and conduct. In the beginning these counselings were generally positive and were encouraging the applicant to strive to continue to improve. However, the counselings became negative, admonishing the applicant for not getting a haircut, not preparing his room for inspection, missing movement, failure to report to duty, and being absent without leave. 4. On 19 September 1989, the applicant made a sworn statement saying that he went AWOL to get the Army to discharge him since he could not adapt to the military. 5. On 27 October 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for, through design, missing the movement of his unit. 6. On 5 December 1989, the applicant was notified by his commander of his commander's intent to recommend his separation due to unsatisfactory performance and of his rights in conjunction with that recommendation. The applicant was told by his commander that his commander intended to recommend he be discharged under honorable conditions and issued a General Discharge Certificate. 7. The applicant waived his rights, and his commander's recommendation was approved by the appropriate authority. Accordingly, the applicant was given a general discharge on 22 December 1989 for unsatisfactory performance. 8. 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. 9. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations. DISCUSSION AND CONCLUSIONS: 1. Contrary to the applicant's contention, he certainly did get into trouble while in the Army. Missing unit movement is a serious offense, as is AWOL. 2. The applicant made a sworn statement that he went AWOL to force the Army discharge him. In view of the serious offenses committed by the applicant and his statement that he went AWOL to force the Army to discharge him, it would be inappropriate to upgrade the applicant's discharge to the honorable discharge that is provided to Soldiers who complete their enlistment without committing any serious offenses. 3. In view of the foregoing, there is no basis to grant the applicant's request. 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) AR20080016873 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016873 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1