RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070008459 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 that his general discharge be upgraded to an honorable discharge and that his reason and authority for separation be changed.

2.  The applicant states that he quit high school in his senior year and that he enlisted in the Army at age 17, mainly to escape an abusive home.  He states that he excelled while he was in the service and that he earned his high school diploma taking night courses.  He states that he carried the mindset of a child while he was in the service and that during unit operations, he conducted himself as a leader.  He states that he was always an integral part of his squad and platoon.  He states that he won many awards, citations and certificates of recognition while he was in the Army for which he will be forever proud.  He states that he was an honor graduate from advanced individual training.  

3.  The applicant states that he was 17 years old and was allowed to go to bars with adults; therefore, he did.  He states that he was an abused child.  He states that while he never got into serious trouble, he was frequently into something.  He states that he had a file of counseling statements that included both good and bad information.  He states that he was reassigned to a different unit and that he was given a chance for a fresh start.  He states that his file was supposed to be thrown away; however, his file followed him and he was marked from the start.  He states that he was labeled as a screw up and was soon discharged because of the information that followed him.  He states that he was less than 3 months away from the expiration of his term of service; that the type of discharge that he received is not reflective of his life as a Soldier; that he loves his country; and that he lives his life like a Soldier now and forever.  

4.  The applicant states that he is the president and chief executive officer of a large non-profit organization and employs over 150 people; that he chairs the education committee for his local Chamber of Commerce; that he has been nominated for Small Business Person of the Year 2 years running; and that he is a committed Rotarian recently awarded the Paul Harris Fellowship Award.  He states that he is asking for a change to the type of discharge that he received for himself and for his family.  He states that his children will bury him someday with a military funeral and that he is sick to think that this scar on his record will be his remembered legacy because it is not reflective of his time in the service or who 



he is as a person.  He states that he is joining the Civil Air Patrol as a pilot and that he does not want to start his service as a "General Discharge" Soldier.  He concludes by stating that he wants to lead and that he wants to help.

5.  The applicant provides no additional documentation in support of his application.

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.  On 5 October 1984, the applicant enlisted in the Army at age 17, in Baltimore, Maryland, for 3 years, in the pay grade of E-1.  He successfully completed his training as a heavy antiarmor weapons infantryman.  On 1 March 1985, he was promoted to the pay grade of E-2.

3.  On 17 January 1986, the applicant was counseled for missing formation.  According to the record of counseling, he was in his room asleep during formation.

4.  On 8 October 1986, the applicant was counseled for missing formation.  He was informed that he had been with the company long enough to know when formations were held and that his platoon sergeant would not tolerate this type of conduct.  He was told that he needed to "square himself away" and to try to excel to be the best Soldier that he could be.  He was informed that if he missed formation again, a more severe action would be recommended.

5.  On 9 October 1986, the applicant was counseled for missing formation.  He was informed that his actions showed a total disregard for self-discipline and that his behavior would not be tolerated.  He was told that further incidents of this nature would result in possible maximum punishment.

6.  On 14 October 1986, the applicant had his initial counseling after being transferred to a different battalion.  He was told what was expected of him as a Soldier and as a new member of the battalion.  

7.  On 14 October 1986, the applicant was notified that nonjudicial punishment was being imposed against him for failure to go to his appointed place of duty and for failure to obey a lawful order by wrongfully having a female in the barracks room.  The applicant acknowledged receipt of the notification and he demanded trial by court-martial.

8.  On 13 November 1986, the applicant was convicted by a summary 
court-martial, of failure to go to his appointed place of duty and for failure to obey a lawful order.  He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $350.00.

9.  The applicant was counseled on 6 February 1987 as a result of his record being lost.  During this counseling, the applicant was reminded that he had been previously counseled for missing formation; having a female in his room; his appearance; traffic violations; and late library books.  The applicant was also advised that he was undergoing procedures for discharge under the provisions of Army Regulation 635-200, chapter 14, and that he would be released from the Army as quickly as his paperwork could be carried through the proper chain.

10.  On 3 March 1987, the applicant was counseled regarding the three types of discharges an individual may receive in an administrative separation action.  He was told that he may expect to encounter substantial prejudice in civilian life if he were to be furnished a general discharge or a discharge under other than honorable conditions; that he may be ineligible for many or all benefits as a Veteran under both Federal and state law; and that may apply for an upgrade of his discharge through the appropriate boards.

11.  The applicant was notified on 18 March 1987, that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to a pattern of misconduct.  He acknowledged receipt of the notification and, after consulting with counsel, he opted not to submit a statement in his own behalf.

12.  The appropriate authority approved the request for discharge on 26 March 1987.  Accordingly on 2 April 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to a pattern of misconduct.  He had completed 2 years, 5 months, and 28 days of net active service and he was furnished a General Discharge Certificate.
13.  A review of the available record fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  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 the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant the relief requested.  He was convicted by a summary court-martial and he was constantly counseled as a result of his acts of misconduct.  Considering the nature of his offense it appears that the applicant's general discharge appropriately reflects his overall record of service, as his service was not totally honorable.

4.  While the applicant contends, in effect, that his post-service conduct has been exemplary, he has submitted no documentation to support his contentions.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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

__CD___  __RDG__  __CAD___  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.




____Carmen Duncan______
          CHAIRPERSON




INDEX

CASE ID
AR20070008459
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  672
144.6750/PATTERN OF MISCONDUCT
3.

4.

5.

6.