RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012286 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was young, inexperienced and did not know who to turn for help with his personal problems, specifically that his wife was cheating on him with his best friend.  Since his discharge, the applicant has started his own business and raised a good son.   

3.  The applicant provided a letter of reference from a business associate. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 October 1986, the date of his discharge from the Army.  The application submitted in this case is dated 21 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 12 January 1984, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years.  On 6 September 1984, he was discharged from the DEP and enlisted in the Regular Army as a private first class/E-3 for three years.  He was 20 years old when he came on active duty.  He completed training requirements and was awarded military occupational specialty 11B (Infantryman). 

4.  The applicant attained the grade of specialist/E-4 and received the Army Commendation Medal, the Army Achievement Medal, and the Army Service Ribbon.

5.  On 7 April 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for driving on post with a revoked license.  He was reduced to private/E-2 and given 45 days of extra duty.
6.  On 24 September 1986, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for two specifications of failing to go to morning formation. He was reduced to private/E-1, a forfeiture of $149.00, and given 45 days of restriction and extra duty.

7.  The applicant was counseled on four occasions for his appearance, performance, lack of maturity and leadership, being late to formation, and on getting married.  He married on 8 June 1985.

8.  On 23 September 1986, the applicant underwent a mental status evaluation.  The examiner indicated that his diagnostic impression of the applicant was that he had marital and occupational problems.

9.  On 30 September 1986, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 13 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of unsatisfactory performance, with a general, under honorable conditions discharge.  

10.  On 30 September 1986, the applicant consulted with legal counsel, was advised of the ramifications of the proposed discharge.  He did not submit a statement in his own behalf.

11.  On 2 October 1986, the separation authority waived further rehabilitation efforts and directed the applicant be separated with a general, under honorable conditions discharge.  Accordingly, on 8 October 1986, the applicant was discharged by reason of unsatisfactory performance after completing 2 years,
1 month, and 3 days of active military service.  His service was characterized as general, under honorable conditions.

12.  The applicant submitted a letter of reference from a friend (retired U. S. Army colonel) who indicates that his relationship with the applicant has been both business and personal in nature.  He states the applicant is a man of absolute integrity, who consistently seeks and accepts responsibility, deals honestly and fairly with his business associates, cares about the welfare of his friends and community, and performs his assigned tasks with the highest possible degree of competence and thoroughness.  He provides the applicant with the key to his home so he can perform tasks when he is away.  

13.  Army Regulation 635-200 (Enlisted Personnel Separations) 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, to include separation for those individuals who fail to maintain Army physical standards.  Service of individuals separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7a, further provides that when a Soldier is discharged before his expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply:

	a.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offenses.

	b.  A Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.

	c.  An honorable discharge may be furnished when disqualifying entries to the Soldier's military record are outweighed by subsequent and faithful service over a greater period of time during the current term of service.  It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his ability to serve was impaired by marital problems and requests that his discharge be upgraded to honorable.

2.  The applicant's record shows that he received NJP on two occasions for driving on post with a revoked license and being late to formation on two occasions.  After receiving his first Article 15, he was awarded the Army Commendation Medal for meritorious achievement on 8 July 1986.  Previous to that, he had already been awarded an Army Achievement Medal for meritorious service in January 1986.  Both Article 15s were received during his last six months of service.

3.  He was also counseled on several occasions regarding his immaturity in leadership and his lackluster performance.  However, during his mental status examination, the psychologist noted that he had marital and occupational problems.  It appears from the record that the applicant was an exemplary Soldier who became overwhelmed by his personal and marital problems, but due to immaturity and/or inexperience, he did not seek or receive the assistance he needed to resolve these problems.  

4.  Since his discharge, the applicant indicates he owns his business and raised a son.  He provided a letter of reference from a retired Army colonel who is a business associate and friend.  He attests to the applicant's honest business practices and work ethic.  

5.  The honorable characterization is appropriate when the quality of a Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel.  A Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Article 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  Under the above guidance, the applicant's infractions of discipline could still entitle him to an honorable discharge.  

6.  In view of the regulatory guidance above, the applicant's documented marital problems, and the award of two personal decorations, it would be in the interests of justice to change his characterization of service to honorable.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 October 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
7 October 1989.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__lvd___  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  __dkh___  __kan___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined during their review that the evidence presented was not sufficient to warrant a recommendation for relief.  The applicant’s discharge at the time of his dismissal was correct for his case.  His duty performance, off-duty performance, and short term of service does not warrant an honorable discharge.  As a result a majority of the Board recommends that the applicant’s request be denied based on the fact there is no finding of error or injustice that would warrant upgrading the characterization of his military service to honorable.



						Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012286
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19861008
DISCHARGE AUTHORITY
AR 635-200, Chap 13
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.4900
2.

3.

4.

5.

6.