IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005574 


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 an upgrade of his discharge. 

2.  The applicant states that he was told his general discharge would be automatically upgraded to honorable six months after his discharge.  He further adds that he and his family are planning a trip to Disney World and that the military resort at Disney World requires a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows an honorable discharge.

3.  The applicant provides a copy of his DD Form 214, dated 2 October 1987, 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 4 February 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Parachutist Badge, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.   

4.  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 20 April 1987, for wrongfully appropriating a license plate of some value, the property of another Soldier, on or about 14 March 1987.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $172.00 pay, 14 days of restriction, and 14 days of extra duty; and

	b.  on 29 July 1987, for failing to go, at the prescribed time, to his appointed place of duty, on or about 18 July 1987.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $153.00 pay, 14 days of restriction, and 14 days of extra duty.  

5.  On 10 August 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for misconduct.  

6.  On 10 August 1987, the applicant acknowledged receipt of the commander's intent to separate him.  He further consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and personal appearance before that board.  He also submitted a statement on his own behalf.




7.  On 10 August 1987, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 due to a pattern of misconduct.  The immediate commander further remarked that separation was recommended because of the applicant's discreditable involvement with civil or military authority and conduct prejudicial to good order and discipline as documented by his two Article 15s.

8.  On 13 August 1987, the applicant requested a conditional waiver where he voluntarily agreed to waive consideration of his case by an administration separation board contingent upon receiving a characterization of service no less favorable than a general. 

9.  On 17 September 1987, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.  He further recommended approval of the waiver for the counseling and rehabilitative requirements.

10.  On 18 September 1987, the separation authority approved the waiver of the counseling and rehabilitative requirements and the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200, by reason of misconduct, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 2 October 1987.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 1 year, 7 months, and 29 days of creditable military service.

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

12.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  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.
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 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.  Furthermore, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

3.  The evidence of record shows that the applicant’s 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.  His record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

4.  All requirements of law and regulation were met and the rights of the applicant appear to have been 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
      
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)                                         AR20080005574



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ABCMR Record of Proceedings (cont)                                         AR20080005574



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