IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080005987 


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 narrative reason for separation be changed.

2.  The applicant states, in effect, that he may have been new to the organization but there was no pattern of misconduct

3.  The applicant provides no additional documents 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 record shows that he enlisted in the Regular Army and entered active duty on 29 September 1987.  He was trained in and awarded military occupational specialty (MOS) Medical Specialist (91A).  The highest rank he attained was pay grade E-3.
3.  On 16 November 1988, the applicant received nonjudicial punishment (NJP) for disobeying a lawful order.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $100.00 pay, 14 days of restriction and extra duty. 

4.  Between November 1988 and March 1990, the applicant was counseled on 45 different occasions for 20 incidents of failure to repair, for 10 incidents of indebtedness and dishonored checks, 11 incidents of misconduct, unsatisfactory duty performance, and 4 incidents of marital violence.  

5.  On 18 September 1990, a Mental Status Evaluation cleared the applicant for separation.   

6.  On 2 October 1990, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14 -12b, Army Regulation 635-200, by reason of Misconduct - Pattern of Misconduct, with a discharge under honorable conditions (General).  He was advised of his rights.  

7.  On 11 October 1990, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

8.  On 19 October 1990, the applicant accepted NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $462.00 per month for 2 months (suspended for 90 days), 30 days of restriction and 30 days of extra duty. 

9.  On 29 October 1990, the appropriate authority approved the recommendation and directed the issuance of a discharge under honorable conditions.  It was further recommended that the rehabilitative requirements be waived.  

10.  On 7 November 1990, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14-12b by reason of Misconduct-pattern of misconduct, with a discharge under honorable conditions (general).  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private/E-1 (PV1), and had completed a total of 3 years, 
1 month, and 9 days of active military service.

11.  The applicant's military service record documents no acts of valor, significant achievement, or service warranting special recognition.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  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.

15.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

16.  On 14 September 1993, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

17.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the reason for his discharge should be changed was carefully considered and found to be without merit. 

2.  The evidence of record shows that during the period of service under review, the applicant demonstrated a pattern of misconduct by displaying an unacceptable disregard for professional conduct, highlighted by numerous counseling sessions, two NJP’s and unwillingness to overcome his deficiencies.  In this regard, there is no evidence of record, and the applicant provides insufficient evidence, to substantiate his claim that his discharge based on misconduct- pattern of misconduct should be changed.  Therefore, the applicant is not entitled correction of his records to show a change to the reason for his discharge.

3.  The evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time.  Therefore, lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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.



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)                                         AR20080005987



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ABCMR Record of Proceedings (cont)                                         AR20080005987



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