RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 May 2008
	DOCKET NUMBER:  AR20080003869 


	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:


M

Chairperson

M

Member

M

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 an upgrade of his discharge. 

2.  The applicant states that he was told his discharge and his reentry code would automatically change six months after his discharge.  He further adds that he needs his discharge upgraded so he may continue his college education in the State of residence he claimed at the time. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 February 1992, 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 records show that he enlisted in the Regular Army for a period of 3 years on 23 September 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16S (Man Portable Air Defense/Pedestal Mounted Stinger Crewmember).  His records also show he reenlisted in the Regular Army for a period of 4 years on 17 September 1991.  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant’s records show he served in Southwest Asia in support of Operations Desert Shield/Storm from 10 January 1991 to 13 May 1991.  

4.  The applicant’s records further show that he was awarded the Army Service Ribbon, the National Defense Service Medal, the Southwest Asia Service Medal with three bronze service stars, the Army Commendation Medal, the Good 
Conduct Medal, and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  The applicant’s records do not reveal any significant acts of valor during his military service.

5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 5 May 1989, for being absent without leave (AWOL) on 20 March 1989.  His punishment consisted of 7 days of extra duty and 7 days of restriction;

	b.  on 17 November 1989, for being AWOL on 15 November 1989.  His punishment consisted of 7 days of extra duty and 7 days of restriction; 

	c.  on 13 December 1989, for failing to go to his appointed place of duty, on or about 7 December 1989.  His punishment consisted of 2 days of extra duty;

	d.  on 13 August 1990, for failing to go to his appointed place of duty, on or about 3 August 1990.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $189.00 pay per month for one month, 14 days of extra duty, and 14 days of restriction; and

	e.  on 17 January 1992, for being AWOL during the period on or about 26 December 1991 through on or about 30 December 1991.  His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $501.00 pay per month for one month, 45 days of restriction, and 45 days of extra duty.

6.  On 2 February 1992, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant, citing his record of indiscipline and pattern of misconduct.  The Bar to Reenlistment Certificate was subsequently approved by the applicant’s battalion commander on 13 February 1992.

7.  On 14 February 1992, the applicant’s immediate commander notified the applicant that he was initiating separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct.

8.  On 14 February 1992, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of 
discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement on his behalf.   

9.  On 14 February 1992, the applicant’s immediate commander initiated separation action against the applicant, in accordance with paragraph 14-12(b) of Army Regulation 635-200.  The immediate commander cited the specific reasons for the action as the applicant’s five Article 15s and 42 instances of counseling.  The immediate commander further remarked that disposition through other means was not warranted by the applicant’s service records.  The immediate commander further requested a waiver for a rehabilitative transfer.

10.  On 18 February 1992, the applicant submitted a statement stating that he desired to be retained on active duty and that if the chain of command determined to discharge him, he requests an honorable discharge. 

11.  On 19 February 1992, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct, and directed the applicant be furnished a General Discharge Certificate.  The DD Form 214 the applicant was issued confirms he was discharged on 24 February 1992 with an Under Honorable Conditions character of service.  This form further confirms that the applicant completed 3 years, 4 months, and 29 days of creditable active military service and had 4 days of lost time due to AWOL.

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken
to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  The separation reason in all separations authorized by this paragraph will be 
“misconduct.”  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 

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 (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 contends that his discharge should be upgraded.   

2.  The Army does not have a policy for an automatic upgrade of a Soldier’s discharge six months after the date of discharge.  

3.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on five occasions and was counseled 42 times by members of his chain of command.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s repeated misconduct and failure to respond to counseling diminished the quality of his service.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



								XXX
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080003869



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