IN THE CASE OF: BOARD DATE: 16 August 2011 DOCKET NUMBER: AR20110001558 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 his general discharge be upgraded to an honorable discharge. 2. The applicant states he has lived the required amount of time honorably since his discharge in 1989. He is a taxpaying citizen, he is a father of six children, and he has two grandchildren. He would like the upgrade to increase his employment opportunities. 3. The applicant does not provide any additional evidence. 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 he enlisted in the Regular Army on 20 October 1987 and was awarded the military occupational specialty of heavy anti-armor weapons infantryman. 3. The applicant was counseled in writing concerning his duty performance three times, failing to be at the time prescribed at his place of duty two times, failing to pay his just debts, losing his military identification card, and using illegal drugs. 4. He accepted nonjudicial punishment (NJP) twice, once for wrongfully using marijuana and once for unlawfully altering a public record. 5. On 6 March 1989, the applicant's commander notified him of his intent to recommend his separation due to misconduct and of his rights in conjunction with that recommendation. The applicant requested legal counsel and then waived his rights contingent upon receiving no less than a general discharge. 6. On 30 March 1989, the applicant's commander forwarded a recommendation to discharge the applicant for misconduct. That recommendation was approved by the appropriate authority. Accordingly, on 21 April 1989 the applicant was given a general discharge for misconduct – pattern of misconduct. 7. On 10 September 1996, the applicant was informed that his request for an upgrade of his discharge was denied by the Army Discharge Review Board. 8. Army Regulation 635-200 (Enlisted Separations) 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, convictions by civil authorities, and desertion or absence without leave. When discharge is ordered under this authority, a discharge under other than honorable conditions is considered appropriate. 9. Army Regulation 635-200, paragraph 3-7a, states 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 Army does not have and has never had a policy to automatically upgrade a discharge based solely on the passage of time. 2. While it is commendable that the applicant has lived honorably since his discharge and has raised a family, this does not constitute a basis for changing a properly-issued discharge. 3. In the applicant's case he was formally counseled on his misconduct on eight occasions and accepted NJP twice. Such a record certainly does not meet the criteria for issuance of an honorable discharge. 4. The applicant was already afforded leniency when he was given a general discharge. An discharge under other than honorable conditions is normally considered appropriate for Soldiers who are discharged for misconduct. 5. In view of the foregoing, there is no basis for granting 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 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) AR20110001558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110001558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1