RECORD OF PROCEEDINGS


	IN THE CASE OF:			


	BOARD DATE:	  		 15 April 2008	
	DOCKET NUMBER:  AR20080001085 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 from general under honorable conditions to honorable.

2.  The applicant states, in effect, that sufficient time has passed since his discharge to warrant an upgrade and entitlement to applicable benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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 military service record shows that he enlisted in the United States Army Reserve under the provisions of the Delayed Entry/Enlistment Program on 24 December 1985 with a corresponding enlistment in the Regular Army on 28 January 1986.  He completed basic training and advanced individual training and was awarded the military occupational specialty 51B (Carpentry and Masonry Specialist).  The highest rank the applicant achieved was private/pay grade E-1.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 18 July 1986, the applicant received an Article 15 (Nonjudicial Punishment) for failure to report for formation as a result of wrongful previous overindulgence in intoxicating liquor which resulted in forfeiture of pay in the amount of $100.00 for one month, 7 days of extra duty, and 7 days of restriction.

5.  On 20 August 1986, the applicant received an Article 15 for verbally disrespecting a noncommissioned officer, damaging military property, striking a noncommissioned officer, and being drunk and disorderly which resulted in forfeiture of pay in the amount of $319.00 for one month, 14 days of extra duty, and 14 days of restriction to the company area, chapel of choice, dining facility, and place of duty.

6.  On 26 January 1987, the applicant received an Article 15 for verbally disrespecting a noncommissioned officer, threatening a noncommissioned officer, operating a vehicle without an operator's license, and operating a vehicle while drunk which resulted in forfeiture of pay in the amount of $329.00 for 2 months, 45 days of extra duty, and 45 days of restriction to the company area, place of duty, dining facility, and chapel of choice.

7.  On 20 February 1987, the applicant's commander notified him of the intention to separate him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations).  Specifically, the applicant was notified that the reason for the proposed action was a pattern of misconduct and the inability to develop sufficiently to satisfactorily participate in further training.  The notification additionally cited numerous counseling statements from the applicant's chain of command regarding his drinking, poor job performance, indebtedness for writing bad checks, and failure to respond to rehabilitation.

8.  On 20 February 1987, the applicant waived his right to consult with legal counsel and was advised of the basis for the contemplated separation action for a pattern of misconduct and its effect, and of the procedures and rights that were available to him.  The applicant acknowledged that he understood that if issued a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life and that he would be temporarily or permanently ineligible to apply for reenlistment in the United States Army after discharge.

9.  On 5 March 1987, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.

10.  The applicant's DD Form 214 indicates that he received a general discharge under honorable conditions for reasons of misconduct (pattern of misconduct) on 19 March 1987.  The applicant's DD Form 214 reflects that he completed a total of 1 year, 1 month, and 22 days of creditable active military service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation prescribes procedures for separating personnel for misconduct, which includes a pattern of misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge under honorable conditions should be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's service record indicates that nonjudicial punishment was imposed against him on three occasions for numerous offenses, including alcohol use, poor job performance, indebtedness, and failure to respond to rehabilitation.  His military service history exhibits a pattern of misconduct and a rehabilitative transfer failed to correct his behavior.

5.  Based on the applicant's record of misconduct, his military service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PHM___    JGH____   __KSJ_      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.




	__P H. M ___
	CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001085



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508