IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080003946 


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 discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states that his discharge was unjust.  He contends that he did not ask to be discharged and that the first sergeant made the decision to discharge him.  He further contends that had he been given more time he would have been able to improve.

3.  The applicant provides no supporting documentation.

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 9 March 1989, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 5 July 1989, the applicant was assigned for duty as an automatic rifleman with the 3rd Battalion, 21st Infantry Regiment, at Schofield Barracks, Hawaii.

4.  On 3 October 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) during the period from 11 to 25 September 1989.  The punishment included reduction to pay grade E-1 and 45 days of restriction and extra duty.

5.  On 21 November 1989, the applicant accepted NJP for violating a lawful order.  The punishment included 7 days of extra duty and restriction.

6.  On 23 January 1990, the applicant accepted NJP for failure to report for duty. The punishment included a forfeiture of $168.00 pay per month for 1 month and 
14 days of extra duty and restriction.  The applicant appealed and it was denied.

7.  On 12 February 1990, the applicant accepted NJP for wrongful consumption of alcohol while on duty.  The punishment included 30 days in correctional custody.

8.  On 26 February 1990, the applicant was declared a correctional custody rehabilitation failure based on a poor attitude, lack of motivation and initiative to become a better Soldier.  

9.  On 27 March 1990, a mental status evaluation found the applicant's behavior normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

10.  On 10 April 1990, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct which was prejudicial to good order and discipline.   The commander cited the four NJP’s that the applicant had received.

11.  On 10 April 1990, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.
12.  On 10 April 1990, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.

13.  Accordingly, on 24 April 1990, the applicant was discharged under honorable conditions.  He had completed 1 year, 1 month, and 16 days of creditable active service.  His lost time due to being AWOL and in correctional custody was not recorded on his Certificate of Release or Discharge from Active Duty (DD Form 214).

14.  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.

15.  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, 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge.

DISCUSSION AND CONCLUSIONS:

1.  The record shows four offenses in 4 months as well as an inadequate response to rehabilitative efforts.  Clearly, this is a pattern of misconduct for which he could have been discharged under other than honorable conditions.

2.  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.

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

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.

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

___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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080003946



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