IN THE CASE OF:	 

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080005033 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young and had circumstances that were out of control and affected his service.  He adds that he does not believe it is fair for him to have to pay for a mistake he made during his service for his entire life.  He believes he is a different man now and deserves a change in his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 record shows he enlisted in the Regular Army on 21 June 1991, at the age of 18 years, 5 months, and 9 days.  His date of birth is 13 January 1973.  He was trained as a Quartermaster & Chemical Equipment Repairer, in military occupational specialty (MOS), 63J.  He was promoted to pay grade E-3 on 1 March 1992.

3.  On 2 September 1992, the applicant was punished under Article 15, under the UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty on two occasions.  His punishment consisted of reduction to pay grade  E-2, a forfeiture of pay, and 14 days restriction and extra duty.

4.  On 28 November 1992, the applicant was punished under Article 15, under the UCMJ, for failing to go to his appointed place of duty. His punishment consisted of reduction to pay grade E-1, a forfeiture of pay, and 14 days of restriction and extra duty.

5.  On 7 December 1992, the applicant's commander advised the applicant he was taking action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  The commander based his recommendation on the applicant’s established pattern of misconduct by his receipt of two company grade Article 15s. 

6.  The applicant acknowledged receipt of the commander's notification on 7 December 1992.

7.  On 7 December 1992, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 9 December 1992 the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, before his ETS, due to misconduct-pattern of misconduct.  

9.  On 9 December 1992, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge.

10.  The applicant was discharged on 16 December 1992, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  He completed 1 year, 5 months, and 26 days of creditable service

11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) 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 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, abuse of illegal drugs, and conviction by civil authorities.  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.  

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, 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 evidence of record shows that the applicant had a pattern of misconduct which was evident by his two Article 15s, under the UCMJ.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  He was issued a general discharge.

3.  The applicant states that he was young then and had circumstances that were out of control and affected his service.  He was 18 years, 9 months, and 15 days of age at the time of his entry on active duty and was 19 years, 11 months, and 4 days of age at the time of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

4.  The applicant states, in effect, that it is unfair for him to pay for a mistake he made during his service for his entire life, that he is a different man now, and deserves a change in his discharge, and last but not least deserved an upgrade of his general discharge.  The evidence of record clearly shows that it has been 
more than 15 years since he received his general discharge.  There also is no evidence in the applicant's records, and the applicant has provided no evidence, to show that he attempted or applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.  

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

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)                                         AR20080005033



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ABCMR Record of Proceedings (cont)                                         AR20080005033



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