IN THE CASE OF: BOARD DATE: 10 November 2009 DOCKET NUMBER: AR20090008372 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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD). 2. The applicant states that although he was discharged for a" pattern of misconduct" he was an outstanding Soldier. He was "Soldier of the Month" and he was up for "Soldier of the Quarter." He also received numerous citations from the command staff. Since being discharged from active duty he has been an outstanding citizen without any issues regarding his conduct. He is also a sworn officer for the state of Oregon. He is currently applying for a position that requires an "Honorable Discharge Certificate" and this change would allow him to be considered. He would greatly appreciate a review of his service record in the Army and his civilian record to get this amended. He is trying to get hired by another law enforcement agency and this agency requires an honorable discharge. He adds that he has been an outstanding civilian and he would also like the ability to reenlist in the Army Reserve. According to the Department of Veterans Affairs (VA) this is the only way that he can get it changed. 3. The applicant provides five training certificates, a letter of commendation, a letter of appreciation, and a letter of appointment as a Correctional Officer for the state of Oregon in support of his 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’s record shows he enlisted in the Regular Army (RA) and he entered active duty on 30 January 1986. He was trained in, awarded, and served in military occupational specialty (MOS) 95B (Military Police). The highest rank he attained while serving on active duty was private first class (PFC). 3. On 6 November 1986, the applicant received a letter of reprimand for assault consummated by a battery (mutual affray), in that he did on or about 4 October 1986, unlawfully strike a fellow Soldier in the face area with closed fists, although evidence indicated that the other Soldier possibly antagonized the incident. 4. Between 9 January and 13 March 1987, the applicant received two general counseling statements for failing to report to his appointed place of duty and for being disrespectful toward a noncommissioned officer (NCO) in his unit. 5. On 13 June 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful to an NCO and for attempting to strike the same NCO. His punishment included 7 days of restriction and extra duty. 6. On 12 September 1987, the applicant accepted an NJP for two incidents of disobeying a lawful order by wrongfully parking his privately owned vehicle in the customs holding area. His punishment included a reduction to pay grade E-2, a forfeiture of $172.00 pay for one month, and 14 days of restriction and extra duty. 7. On 7 March 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for operating a vehicle while drunk and for committing an assault on another person by striking him on the head with a dangerous weapon, a wooden stick. His punishment included a reduction to pay grade E-1, a forfeiture of $200.00 pay per month for 2 months, and 45 days of restriction. 8. On 22 March 1988, the unit commander notified the applicant he was initiating separation action on him under the provisions of chapter 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct. The unit commander cited the applicant’s pattern of misconduct as the basis for the action. 9. On 4 April 1988, the applicant was advised of his rights and he completed a statement waiving his right to a personal appearance before a board of officers and he elected not to submit a statement in his own behalf. 10. On 29 April 1988, the separation authority approved the applicant’s separation and directed he receive a General Discharge Certificate. On 23 May 1988, the applicant was discharged accordingly. The DD Form 214 he was issued at the time confirms he was separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct – pattern of misconduct. He completed a total of 2 years, 3 months, and 24 days of active service. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. The regulation states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. The separation authority may direct a GD if such is merited by the Soldier's overall record. A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. An honorable discharge (HD) may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 12. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 13. Paragraph 3-7a of the same regulation provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions that he was an outstanding Soldier and citizen, and the supporting documents that he submitted in support of his request were carefully considered. However, there is insufficient evidence to support his request. 2. The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 3. The applicant's record reveals a disciplinary history that includes his acceptance of NJP on three separate occasions and his failure to respond to rehabilitative efforts that included counseling and a letter of reprimand. As a result, his record was not sufficiently meritorious to support the issue of an HD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date. 4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090008372 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090008372 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1