RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080002131 


	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 general discharge be upgraded to a fully honorable discharge. 

2.  The applicant states that he apologizes for his actions in the Army and that he was a young kid with several family problems at home at the time that could not be ignored and they affected his judgment and responsibilities to the Army.  He goes on to state that if he was able to serve again, it would be a great honor to do so for that was always his wish in life; however, he has now become disabled and would like to correct his errors in life.  He also states that he has no supporting evidence but he takes full responsibility for all of the things he has done.   

3.  The applicant provides no additional documents with 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 was born on 24 July 1968 and enlisted in the Regular Army in Newburgh, New York on 16 July 1987 for a period of 3 years and training as a Nuclear, Biological and Chemical (NBC) specialist.

3.  He completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training at Fort McClellan, Alabama before being transferred to Fort Hood, Texas on 8 February 1988 for his first and only duty assignment.  He was advanced to the pay grade of E-3 on 16 July 1988.  

4.  On 26 July 1988, nonjudicial punishment (NJP) was imposed against him for pointing a loaded weapon at another Soldier.  His punishment consisted of an oral reprimand, extra duty and restriction.
5.  On 22 November 1988, NJP was imposed against him for violating a lawful order by going out of the 200-mile limit of travel for off-duty and passes without authority by flying to New York and for failure to be at his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, extra duty, restriction, an oral reprimand and a forfeiture of pay (suspended for 3 months).  

6.  On 18 May 1989, NJP was imposed against the applicant for being absent without leave (AWOL) from 4 April to 5 May 1989.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.  

7.  On 12 June 1989, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He cited the applicant’s disciplinary record, his record of AWOL, his repeated misconduct and his failure to respond to counseling as the basis for his recommendation. 

8.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.

10.  Accordingly, he was discharged under honorable conditions on 23 June 1989, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.  He had served 1 year, 10 months and 8 days of total active service and he had 30 days of lost time due to being AWOL.

11.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although a general discharge may be issued, 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.   The applicant’s contentions have been noted; however, his record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel. His service simply does not rise to the level of a fully honorable discharge. Therefore, there is no basis to approve his request. 
 
4.  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

__JLP  __  __TSK__  __DWT__   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.





      ___        TSK                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002131



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