IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003874 


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 that his narrative reason for separation (Misconduct – Commission of a Serious Offense) be removed from his Certificate of Release or Discharge from Active Duty (DD Form 214).

2.  The applicant states, in effect, that he does not remember what happened back during the time that he was being discharged from the Army that would have resulted in his being discharged for misconduct.  He states that he believes that he has been an outstanding and well respected citizen in his community since being released from the military and that he has had to explain his reason for separation when he is trying to obtain employment.

3.  The applicant provides in support of his application, a copy of his DD Form 214.

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.  On 10 September 1986, the applicant enlisted in the Regular Army in Newburgh, New York, for 4 years, in the pay grade of E-1.  He successfully completed his training as a light wheel vehicle mechanic.  

3.  The applicant was advanced to the pay grade of E-2 on 10 March 1987.

4.  Nonjudicial punishment (NJP) was imposed against he applicant on 21 May 1987, for disobeying a lawful order.  His punishment consisted of a forfeiture of pay in the amount of $172.00 and extra duty for 14 days.

5.  On 24 September 1987, NJP was imposed against the applicant for being absent without leave (AWOL) from 21 July 1987 until 29 July 1987.  His punishment consisted of a reduction to the pay grade of E-1 (suspended), a forfeiture of pay in the amount of $153.00, and extra duty for 14 days.

6.  The applicant was advanced to the pay grade of E-3 on 1 April 1988.

7.  On 12 September 1988, the applicant was counseled for failure to report to work.  According to the information contained in his General Counseling Form, he was called several times and he did not answer the telephone.  People were also sent to his apartment and he did not answer the door.  He was told that if his behavior continued, it would be recommended that he be punished under the Uniform Code of Military Justice.

8.  The applicant had NJP imposed against him again on 18 November 1988 for being AWOL from 14 October 1988 until 2 November 1988, when he was apprehended and returned to military control.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay of $335.00 per month for 2 months, and restriction and extra duty for 45 days.

9.  On 23 November 1988, the applicant was counseled regarding his two periods of AWOL and for substandard performance.  During his counseling, he was told that if his performance and conduct continued to be unsatisfactory he would be processed for separation under the provisions of Army Regulation 
635-200, chapter 5, chapter 13, or chapter 14.  He was also counseled that if he was processed for separation under the provisions of Army Regulation 635-200, 
chapter 13 or chapter 14, he may receive an other than honorable conditions discharge; and that such discharges may have serious consequences affecting civilian employment, veterans benefits, or future service in the Armed Forces.
10.  On 15 December 1988, the applicant underwent a mental status evaluation and the determination was made that he was mentally responsible; that he met the retention requirement of Army Regulation 40-501, chapter 3; and that he had the mental capacity to understand and to participate in separation proceedings.

11.  On 6 January 1989, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  His commander cited the three records of NJP and his counseling statements as a basis for his recommendation for discharge.  The applicant acknowledged receipt of the notification for discharge on 6 January 1989 and, after consulting with counsel, he waived his right to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation for discharge on 25 January 1989 and he recommended the issuance of a General Discharge Certificate.  Accordingly, on 1 February 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 2 years, 4 months and 22 days of net active service and he had approximately 26 days of lost time due to AWOL.  He was furnished a General Discharge Certificate.

13.  A review of the available records fails 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.

14.  Army Regulation 635-200 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, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, his records clearly show that he was discharged for misconduct – commission of a serious offense as a result of having NJP imposed against him for being AWOL and for failure to obey a lawful order, and as a result of his substandard performance.  He has provided no evidence to show that the narrative reason for separation that is currently reflected on his DD Form 214 is incorrect or too harsh.  The fact that he now contends that he does not remember what occurred resulting in his discharge for misconduct – commission of a serious offense is not a sufficient basis for removing his narrative reason for separation from his DD Form 214.

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.

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
      
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)                                         AR20080003874



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ABCMR Record of Proceedings (cont)                                         AR20080003874



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