RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010185 


	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. Judy L. Blanchard

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. 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, that his discharge be upgraded to an honorable discharge.

2.  The applicant states, provides no argument in support of his application.

3.  The applicant provides no additional documents 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.  The applicant’s record shows that he initially enlisted in the Regular Army and entered active duty on 27 May 1986.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained was pay grade E-4.

3.  Between April and September 1989, the applicant was counseled on eight different occasions for missing mandatory formation, for failure to make movement, for being insubordinate and poor duty performance. 

4.  On 18 August 1989, the applicant received a Letter of Reprimand for driving under the influence of alcohol.  The applicant was also placed in the Drug and Alcohol Prevention Program.  

5.  On 3 October 1989, the applicant accepted nonjudicial punishment for failure to go at the prescribed time his appointed place of duty.  His imposed punishment was 14 days extra duty.

6.  On 10 October 1989, a mental and a physical evaluation cleared the applicant for any administrative action deemed appropriate. 
7.  On 12 October 1989, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 
14 -12b, Army Regulation 635-200, by reason of Misconduct-Pattern of Misconduct, with a discharge under honorable conditions.  The reason for the proposed action was the applicant’s driving under the influence of alcohol, his failure to repair, his record of counseling and apathy.  

8.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

9.  On 7 November 1989, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12b by reason of misconduct – pattern of misconduct, with a discharge under honorable conditions (general).  The DD Form 214 he was issued at the time of his discharge confirms that he held the rank of private first class pay grade E-3 and that he had completed a total of 
3 years, 5 months, and 11 days of active military service.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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, and convictions by civil authorities.  

11.  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.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge was carefully considered and found to be insufficient in merit.  

2.  After carefully evaluating the evidence of record, it is determined that the applicant’s discharge processing was conducted in accordance with applicable law and regulations at the time and that the character of his service is 
commensurate with his overall record of military service.  The evidence of record also confirms that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, given the circumstances in this case and his overall record of service, there is insufficient evidence to support his request.  An upgrade of his discharge is not warranted at this time.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___RML_  __EEM  _  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.




___ Kathleen A. Newman___ 
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.