RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070008479 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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.

2.  The applicant states, in effect, that he would like his DD Form 214 (Certificate of Release or Discharge from Active Duty) be upgraded to show an honorable discharge based on his life change and realization of the severity of his past actions.

3.  The applicant provides a copy of his written statement, character statements from Texas Rangers Company "B"; Macedonia Baptist Church; City of Longview, Sanitation/Fleet Manger; President of Kilgore College; Educational Counselor, The Texas Association of Developing Colleges; and transcripts from Kilgore College and Texas Women's 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 military service records show that he entered active duty on  
5 November 1997.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

3.  On 28 September 1998, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a general regulation by wrongfully carrying a knife concealed on his person; wrongfully consuming alcohol while under the age of 21 a violation of Article 92; and being drunk and disorderly a violation of Article 134, UCMJ.

4.  On 8 December 1999, the applicant accepted NJP under the provisions of Article 15, UCMJ, for unlawfully striking a Soldier on his arm with a pocket knife, a violation of Article 128, UCMJ.
5.  The applicant's military service records contain numerous counseling statements that show he was appropriately counseled about his deficiencies and misconduct by his command.

6.  On 25 February 2000, the applicant's commander recommended separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14-12c, Commission of a Serious Offense, for violation of lawful general regulations and simple assault.  He was advised that if his recommendation was approved the proposed separation could result in a General Discharge under honorable conditions.  The applicant acknowledged receipt of the recommendation.

7.  On 28 February 2000, he was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel. The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.  He understood that if he receives a discharge/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for correction of Military Records for upgrading.  However, he realizes that an act of consideration by either board does not imply that his discharge will be upgraded. He further understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.

8.  On 13 March 2000, the recommendation for separation was approved by the appropriate authority.

9.  On 23 March 2000, the applicant was given a General Discharge Certificate for misconduct.  He had completed a total of 4 years, 4 months, and 19 days of active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) on 
22 December 2003.  On 3 September 2004, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

11.  The statement that the applicant submitted states, in effect, that he was immature and stupid during his term of enlistment and if he had understood the continued ramifications to his life and employment opportunities, he would have 
never elected to be discharged under Army Regulation, 635-200, chapter 14.  In addition, the character statements that were submitted by the applicant attest to his character and achievements as a citizen in his community.

12.  Army Regulation 635-200 (Personnel Separations), currently in effect, 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 serious offense, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate.

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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his general discharge be upgraded to an honorable discharge.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for misconduct.

3.  The applicant's contention that he was immature and stupid during his term of enlistment and if he had understood the continued ramifications to his life and employment opportunities, he would have never elected to be discharged under 
Army Regulation 635-200, chapter 14, is not sufficient mitigating to warrant relief. Also, his character statements and post-service achievements were noted. However, in view of the nature of his misconduct, that is also not sufficiently mitigating to warrant relief.

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___klw __  ____mjf__  ____lmd _  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.




_________Kenneth L. Wright________
          CHAIRPERSON




INDEX

CASE ID
AR20070008479
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071106
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.