IN THE CASE OF: BOARD DATE: 2 April 2009 DOCKET NUMBER: AR20090002419 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 be upgraded to an honorable discharge. 2. The applicant states, in effect, he served his country with distinction for almost three years. He continues that as he gets older, his service records have become more important. He concludes that he earned an honorable discharge. 3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application. 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 1 October 1987 and upon completion of initial entry training he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman). He was released from active duty on 18 June 1990. 3. On 18 December 1988, nonjudicial punishment was imposed against the applicant for failure to obey a lawful order. His punishment consisted of extra duty and restriction. 4. On 7 December 1989, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty and for failing to obey a lawful order. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 5. On 13 March 1990, nonjudicial punishment was imposed against the applicant for stealing a walkman cassette player, property of another Soldier. His punishment consisted of reduction, a forfeiture of pay, extra duty, and restriction. 6. On 22 May 1990, nonjudicial punishment was imposed against the applicant for disobeying a lawful order from a noncommissioned officer. His punishment consisted of reduction, a forfeiture of pay, extra duty, and restriction. 7. On 31 May 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for misconduct (pattern of misconduct). The applicant’s unit commander cited the bases for the recommendation for separation as the applicant's failure to improve his conduct/duty performance after all rehabilitative attempts met with negative results. 8. On 6 June 1990, the applicant consulted with counsel and waived consideration of his case by a board of officers. He also acknowledged that he might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued. He elected to submit a statement on his own behalf. 9. On 7 June 1990, the applicant submitted a statement which indicated that his job performance during his three years in the military had been satisfactory, that he earned numerous awards and certificates as a result of his duty performance and that based on his duty performance he deserved an honorable discharge. 10. On 11 June 1990, the intermediate commander recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14. The intermediate commander based his recommendation on the applicant's lack of motivation to adapt to military standards, on his lack of respect for his superiors, and on his acts of misconduct. 11. On 11 June 1990, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge certificate. 12. Accordingly, the applicant was discharged on 18 June 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct) with a general discharge under honorable conditions. He had served 2 years, 8 months, and 18 days of creditable active service. 13. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 15. Army Regulation 635-200, 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 applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit. 2. Records show the applicant received nonjudicial punishment on four occasions. 3. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. 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) AR20090002419 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090002419 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1