RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070006057 


	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. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 “Under Honorable Conditions Discharge" be upgraded to an “Honorable Discharge”.

2.  The applicant states, in effect, that he committed minor infractions that were not serious enough to warrant this type of discharge.

3.  The applicant did not provide any 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's records show that he enlisted in the Regular Army on 27 April 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food service Specialist).  Records further show that the highest rank the applicant attained during his military service was private first class/pay grade E-3.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, and the Marksman Marksmanship Qualification Badges with Rifle Bar (M-16) and Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant’s records show a history of developmental counseling by several members of his chain of command for failure to report to duty and/or failure to follow orders on several occasions, lack of motivation, tardiness, and other infractions.

5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 15 June 1984, for failing to go to his appointed place of duty on 6 May 1984 and on 20 May 1984, and disobeying a lawful order on 20 May 1984. His punishment consisted of 14 days restriction, and 14 days extra duty.

	b.  On 13 July 1984, for failing to go to his appointed place of duty on 18 June 1984 and on 30 June 1984.  His punishment consisted of forfeiture of 7 days pay (suspended for 90 days), 14 days restriction, and 14 days extra duty. 

6.  On 29 January 1985, the applicant’s immediate commander initiated separation action against the applicant in accordance with paragraph 14-12a of Army regulation 635-200 (Personnel Separation) for misconduct.  The applicant acknowledged receipt of the separation memorandum on the same day.

7.  On 29 January 1985, the applicant 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.

8.  On 5 February 1985, the applicant submitted a statement acknowledging his tardiness and lateness to work, attributed his indiscipline to severe family problems, and suggested separation for unsatisfactory performance instead of misconduct.

9.  On 7 February 1985, the Fort Riley, Kansas, Acting Staff Judge Advocate reviewed the applicant’s separation packet with all supporting documents and found it legally sufficient.  He further recommended approval of the separation in accordance with chapter 14 of Army regulation 635-200 and a general discharge.

10.  On 11 February 1985, the separation authority approved the applicant’s separation with a general discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, 9 months, and 19 days of creditable active military service.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.
12.  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.

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 (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 records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 occasions.  Additionally, the applicant's records show several attempts of developmental counseling by his chain of command for multiple infractions, to no avail.  

3.  The applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As a result, there is insufficient basis for upgrading his discharge to an honorable discharge.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bpi___  __tmr___  __gjp____  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.




							Bernard P. Ingold
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006057
SUFFIX

RECON

DATE BOARDED
20070830
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19850215
DISCHARGE AUTHORITY
AR 635-200, Chap 14
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.