IN THE CASE OF:	  

		BOARD DATE:	
		DOCKET NUMBER:  AR20070013878 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions, discharge be upgraded to honorable.

2.  The applicant states, in effect, that he believes his service to his country should be enough to warrant a change in characterization of discharge.

3.  The applicant provided no additional documentary evidence in support of his request for an upgrade of his discharge.

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 enlisted in the Regular Army on 8 November 1989, with prior enlisted service in the Reserve and in the Army National Guard.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 5th Cavalry, Fort Hood, Texas, as his first duty station for duty in the military occupational specialty 11C, Infantry Indirect Fire Crewman.

3.  On 24 May 1991, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying the lawful order of a noncommissioned officer.  The imposed punishment was a reduction in grade to E-2; a forfeiture of $216.00 pay per month for 1 month, suspended for 3 months; and extra duty for 14 days.

4.  The applicant's record shows he was promoted to the rank and pay grade of Private First Class, E-3, on 1 September 1991.  The record shows this is the highest rank and pay grade he held on active duty.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  On 26 November 1991, the applicant received an Article 15 under the provisions of the UCMJ for absenting himself without authority on 7 November 1991 and remaining so absent until 9 November 1991.  The imposed punishment was a reduction to pay grade E-2, suspended for 6 months; a forfeiture of $197.00 pay for 1 month, suspended for 6 months; and to perform extra duty for 14 days.

6.  On 21 January 1992, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The applicant’s memory was good.  The evaluator, an Army physician’s assistant opined that the applicant had the mental capacity to understand and participate in separation proceedings.

7.  The evidence of record shows that on 6 March 1992, the applicant’s unit commander notified him he was recommending that he be discharged from the Army under the provision of Army Regulation 635-200, Chapter 14.  The reason for the proposed action was that he had discreditable conduct and conduct prejudicial to good order and discipline which included conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored traditions of the Army.

8.  The applicant acknowledged the letter of notification on 6 March 1992.

9.  On 6 March 1992, the applicant consulted with counsel and was advised of the basis for the contemplated action and of its effects on him, the rights that were available to him, and the effects of any action taken by him in waiving his rights.  The applicant acknowledged that he did not have sufficient time in service to have his case considered by a board of officers.  The applicant was advised he had the option to submit a statement in his own behalf.  The applicant indicated he was submitting a statement; however, a copy of the statement, if made and submitted, was not included in the case file.

10.  On 6 March 1992, the applicant's unit commander recommended that the applicant be discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12(b), for a pattern of misconduct.

11.  The applicant's chain of command unanimously recommended approval of the applicant’s discharge for misconduct and recommended that he be discharged with a general, under honorable conditions, discharge.

12.  On 24 March 1992, the approving authority approved the applicant’s discharge and directed that he be issued a general, under honorable conditions, discharge.

13.  The applicant was discharged with a general, under honorable conditions, discharge in the rank and pay grade of Private First Class, E-3, on 15 April 1992, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  On the date of his discharge, the applicant had completed 2 years, 5 months and 6 days active military service with the period from 7 November 1991 through 9 November 1991 identified as days of time lost.

14.  Copies of thirty four counseling reports are on file in the applicant’s service records.  These records which were recorded on DA Form 4856, General Counseling Form, and on other medium, show he was counseled for:  general purposes (monthly performance counseling), being absent from formations, missing a scheduled dental appointment, missing mandatory accountability formations, missing six hours of duty, missing a platoon movement, disobeying a lawfully given order, failing to repair, being out of uniform by not wearing his authorized insignia of rank, being suspected of consuming alcohol while on duty, being repeatedly late to duty and to scheduled formations, having received a letter of indebtedness, being absent without leave, failing to get a registration sticker for his privately owned vehicle (POV), failing to buy insurance for his 

POV, continuing to drive an unregistered vehicle on post, and failing to appear at his appoint place of duty.  The above is a summary of violations and many of the above infraction were repeated by the applicant.

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

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

17.  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.  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.

2.  The evidence of record shows that the applicant continually conducted himself in a discreditable manner which was prejudicial to good order and discipline.  The evidence suggests that he was given more than ample opportunity to conform to Army standards but he was reluctant to do so.  Counseling statements that are available for the Board's review also attest to the command's efforts to guide the applicant in the direction of success rather than to an exit from the Army.  He was provided sufficient guidance and counseling but the applicant expended no effort in changing his ways and conducting himself as a Soldier is required to.

3.  The overall quality of the applicant's service was considered.  The applicant's conduct diminished the overall quality of the service that was expected of him.  The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his undesirable 

discharge.  His service was determined not to have been sufficiently meritorious to warrant an upgrade of his discharge.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




      _______ x_   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070013878



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ABCMR Record of Proceedings (cont)                                         AR20070013878



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