RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 September 2007
	DOCKET NUMBER:  AR20070005724 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Larry C. Bergquist

Chairperson

Ms. Marla J. N. Troup

Member

Ms. Ernestine I. Fields

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 his General Discharge be upgraded to an Honorable Discharge based on time elapsed as a solid citizen.

2.  The applicant states that it has been over 20 years since his discharge and that he has lived a productive life without any incidents since his discharge.

3.  The applicant provided the following documentation in support of his application:

	a.  An original self-authored letter describing his accomplishments since his discharge.

	b.  An original retired General Officer's character statement.

	c.  A copy of Diploma awarding him a Bachelor of Art degree, University of Texas at Austin.

	d.  A copy of Diploma awarding him a Master of Science degree, Regis University.

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 records show that he enlisted in the Regular Army on 1 November 1983 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that the applicant was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Parachutist Badge, and the Expert Marksmanship Qualification Badge.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records show that his immediate commander reported him absent without leave (AWOL) during the period on or about 7 August 1985 through on or about 19 August 1985.

5.  On 4 September 1985 charges were preferred against the applicant for failing to go to his appointed place of duty on 2 August 1985 and for being AWOL during the period on or about 7 August 1985 through on or about 19 August 1985.

6.  On 20 September 1985, the applicant pled guilty at a Summary Court-Martial to one specification of failing to go to his appointed place of duty on 2 August 1985 and one specification of being AWOL during the period on or about 7 August 1985 through on or about 19 August 1985.  The Court sentenced the applicant to confinement for 20 days, reduction to the grade of private/pay grade E-1, and forfeiture of $350 pay. 

7.  The applicant's records show that he was confined during the period 24 September 1985 through 15 October 1985.

8.  On 21 November 1985, the applicant underwent a mental status evaluation and was found as having the mental capacity to understand and participate in any proceedings contemplated.

9.  On 13 December 1985, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel separation) for patterns of misconduct.

10.  On 13 December 1985, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a general discharge, and of the procedures/rights that were available to him.

11.  On 23 December 1985, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of patterns of misconduct and directed the applicant be furnished a General Discharge Certificate. The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under honorable conditions.  This form further confirms that he completed a total of 2 years and 27 days of creditable active military service and 34 days of lost time.

12.  In a self-authored letter, the applicant acknowledges the mistakes he made during his military service and describes how his Army experience shaped his personality and equipped him with the determination to seek higher education resulting in both collegiate diplomas at the Bachelor and Master levels.

13.  In another submitted letter of character, Brigadier General B******* attests to the applicant's character, thorough knowledge, education, and training.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant's record of service shows that he was charged with one count of AWOL and one count of failing to go to his appointed place of duty.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  After review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for an honorable discharge.  As a result, there is insufficient basis to grant a relief

3.  The Board noted the applicant's achievement since his discharge and appreciates BG B*******'s testimony of the applicant's character.  However, the U.S. Army has never had a policy where a discharge was upgraded due to passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lcb___  __mjnt__  __eif___  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.




							Larry C. Bergquist
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005724
SUFFIX

RECON

DATE BOARDED
20070911
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19851231
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.