RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070005485 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. John T. Meixell

Member

Mr. Richard T. Dunbar

Member

	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, in effect, that his general discharge, characterized as under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young and immature and had a bad attitude.  He agreed to a general discharge just to go home. 

3.  The applicant provides no additional documentation in support of his request.

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 is requesting correction of an alleged error or injustice which occurred on 23 September 1996, the date of his discharge.  The application submitted in this case is dated 3 April 2007.

3.  The applicant's record shows he enlisted in the Regular Army on 15 October 1993, at the age of 18 years, 8 months, and 25 days, for 4 years, with an established expiration term of service (ETS) of 14 October 1997.  His date of birth is 21 January 1975.  The applicant successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 16T, Patriot Missile Crewmember.  He was advanced to pay grade E-4 on 15 December 1995.

4.  On 4 October 1995, he received a summarized Article 15, under the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from a superior noncommissioned officer.  His punishment consisted of restriction and extra duty.

5.  On 11 April 1996, the applicant was punished under Article 15, under the UCMJ, for being disrespectful in language toward a noncommissioned officer and for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of reduction to pay grade E-3, a forfeiture of pay, and 14 days restriction and extra duty.

6.  On 26 August 1996, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct.  He based his recommendation on his numerous times of disrespecting NCOs, disobeying orders, failing to repair, his appearance as a Soldier, his company grade Article 15, and his summarized Article 15. 

7.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 3 September 1996, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct, prior to his ETS (expiration of term of service) date.

9.  On 16 September 1996, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge with his service characterized as under honorable conditions.

10.  The applicant was discharged on 23 September 1996, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct.  He completed 2 years, 11 months, and 9 days of creditable service.

11.  On 27 July 2001, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  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, abuse of illegal drugs, and conviction 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.  

13.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate
considering all of the facts of the case.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct.

4.  The applicant stated that he was young and immature.  It is noted that he was 18 years, 8 months, and 25 days of age at the time of his enlistment and was 21 years, 8 months, and 3 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

5.  The applicant alleges that he had a bad attitude; however, this was evidenced by the non-judicial punishment he subjected himself to during his service.  This bad attitude led to his general discharge.  It is apparent that had he conformed to military standards and had not subjected himself to non-judicial punishment, during his 4 year enlistment, he would have received an honorable discharge.

6.  The applicant’s allegation that he agreed to a general discharge just to go home is evidenced by the fact he waived his rights and elected not to make a statement in his own behalf.  He was approved for a general discharge by appropriate authorities.



7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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

__e_____  __RTD __  _JTM ___  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.




_____Lester Echols_________
          CHAIRPERSON




INDEX

CASE ID
AR20070005485
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070823
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19960923
DISCHARGE AUTHORITY
AR 635-200, chapter 14-12b. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.