RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070009884 


	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:


Ms. Kathleen Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that it was a long time ago and that he would like his general discharge upgraded to an honorable discharge.  He was young then and has come a long way in life.  He states that this is the one thing that has haunted him and he wishes to try to correct it.  He was told it would turn to  honorable automatically after 5 years; however, it has not been upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows he enlisted in the Regular Army on 5 December 1984, at the age of 17 years, 9 months, and 15 days, for 3 years, with an established expiration term of service (ETS) of 4 December 1987.  His date of birth is 21 February 1967.  He successfully completed both basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his training, he was awarded the military occupational specialty (MOS), 19D, Cavalry Scout.  He was advanced to pay grade E-3 on 1 August 1985.

3.  On 7 August 1986, the applicant was punished under Article 15, under the UCMJ (Uniform Code of Military Justice), for being absent without leave (AWOL) from 7 July 1986 to 21 July 1986 and for failing to go to his appointed place of duty on 6 and 7 July 1986.  His punishment consisted of reduction to pay grade E-2, a forfeiture of pay, and 14 days restriction and extra duty.
4.  On 10 September 1986, the applicant was barred from reenlistment due to his Article 15, under the UCMJ, for letters of indebtedness and nonsupport of dependents, and for, in effect, uttering bad checks.

5.  On 14 November 1986, the applicant was punished under Article 15, under the UCMJ, for being AWOL from 11 to 16 October 1986 and on 19 October 1986. His punishment consisted of reduction to pay grade E-1, a forfeiture of pay, and 45 days of restriction and extra duty.

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record-Part II), shows that he was confined by civil authorities from 16 to 18 October 1986 (3 days), AWOL on 19 October 1986 (1 days), confined by civil authorities from 24 November 1986 to 2 December 1986 (9 days), and confined by military authorities from 16 January 1987 to 8 February 1987 (24 days).

7.  On 3 March 1987, 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-pattern of misconduct.  The commander based his recommendation on the applicant’s total disregard for military rules and regulations and willful acts of misconduct. 

8.  The applicant acknowledged receipt of the commander's notification on 10 March 1987.

9.  On 11 March 1987, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

10.  On 24 March 1987, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge.

11.  The applicant was discharged on 1 April 1997, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  He completed 2 year, 2 months, and 1 day of creditable service and had 56 days of time lost due to being AWOL and in confinement.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.


13.  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.  

14.  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.  The evidence of record shows that the applicant had a pattern of misconduct. He went AWOL on three occasions and received two Article 15s, under the UCMJ, for misconduct.  He was also confined by civil and military authorities, and was barred from reenlistment.  He accumulated a total of 56 days of lost time due to AWOL and confinement.  

2.   The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  He was issued a general discharge.

3.  The applicant contends that it was a long time ago and that he would like his general discharge upgraded to an honorable discharge.  The evidence of record clearly shows that it has been more than 20 years since he received his general discharge.  There also is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted or applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.  

4.  The applicant states that he was young then and has come a long way in life. He was 17 years, 9 months, and 15 days of age at the time of his entry on active duty.  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 term of service.  
5.  Contrary to the applicant's assertions, in effect, that he was told that his general discharge would be automatically upgraded to an honorable discharge after 5 years, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Soldiers are advised at the place of their separation that it is their responsibility to request an upgrade it they receive less than an honorable discharge.  When an application for the upgrade of a discharge is received, each case is decided on its own merits.  A change may be warranted if the Board determines that the characterization of service or the reason for discharge, or both, were improper or inequitable.   

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN_  ___RML__  __EM___  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.




_____K A Newman________
          CHAIRPERSON




INDEX

CASE ID
AR20070009884
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071206
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19870401
DISCHARGE AUTHORITY
AR 635-200, chap 14-12b
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.