IN THE CASE OF:	   

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080005046 


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 general discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states that to his knowledge his discharge was to be upgraded after 5 years.

3.  The applicant provides no additional evidence.

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.  After having had prior service in the U. S. Army Reserve, the applicant enlisted in the Regular Army on 8 May 1990.

3.  On 16 October 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for two specifications of failing to go to his appointed place of duty.

4.  On 29 November 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for 49 specifications of writing a bad check.

5.  On 11 January 1991, the applicant’s company commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.  The reasons cited were the applicant’s two Article 15s.  Also cited were the applicant’s being counseled on diverse occasions concerning matters such as his wall locker being unsecured, not wearing his identification tags, failing to follow instructions, failing to be at his appointed place of duty, leaving his appointed place of duty without informing his superiors of his whereabouts, failing to maintain his room and military equipment in accordance with unit standards, lack of motivation, lack of discipline, and lack of military bearing.  He had also been counseled about being disrespectful towards noncommissioned officers, his immature attitude, misuse of his father’s automatic teller machine (ATM) phone card, being disrespectful to officers, being found asleep on guard duty, missing a unit movement, failing to properly secure and account for his weapon, and failing to wear the prescribed uniform.  The commander recommended the applicant receive a general discharge.

6.  On 11 January 1991, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He requested consideration of his case by a board of officers and appearance before such a board if a discharge under other than honorable conditions was recommended.  He indicated he would submit a statement on his behalf on 19 January 1991, but no statement is available.

7.  The applicant also indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He understood that if he received a discharge/characterization of service which was less than honorable, he could make application to the Discharge Review Board or the ABCMR for upgrading.

8.  On 14 January 1991, the applicant’s company commander formally recommended the applicant be discharged.  On 18 January 1991, the applicant’s battalion commander recommended he be discharged with issuance of a General Discharge Certificate.  The approval authority’s action is not available.

9.  On 26 February 1991, the applicant was discharged, with a general discharge, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He had completed 9 months and 19 days of creditable active service and had no lost time during the enlistment under review.

10.  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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  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 if such is merited by the Soldier’s overall record.  

11.  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.  

12.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

DISCUSSION AND CONCLUSIONS:

1.  The Army does not have a policy to automatically upgrade discharges.  The applicant acknowledged this when he indicated he understood that if he received a discharge/characterization of service which was less than honorable he could make application to the Discharge Review Board or the ABCMR for upgrading.

2.  It the absence of evidence to the contrary, it is presumed that 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 applicant was discharged for misconduct, for which a characterization of service of under other than honorable conditions is normally appropriate.  Considering the applicant’s numerous infractions of military discipline, the characterization of his discharge as general under honorable conditions was generous.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ____xx__  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.




      _______ _xxxx______   ___
               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)                                         AR20080005046





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ABCMR Record of Proceedings (cont)                                         AR20080005046



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