IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080006491 


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 be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that a general discharge was too harsh for the offenses he committed. 

3.  The applicant provides no additional documents with 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 enlisted in Miami, Florida on 14 June 1990 for a period of 4 years and 18 weeks and training as a defense acquisition radar operator.  He completed his one-station unit training (OSUT) at Fort Bliss, Texas and was transferred to Fort Lewis, Washington, on 16 October 1990 for his first and only duty assignment. 

3.  On 28 November 1990, nonjudicial punishment (NJP) was imposed against the applicant for shoplifting merchandise from the post exchange in the value of $190.00 (leather jacket, cologne, leather snap kit).  His punishment consisted of a forfeiture of 7 days base pay, extra duty, and restriction.   

4.  On 13 March 1991, NJP was imposed against him for three specifications of failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.  

5.  On 15 May 1991, NJP was imposed against him for failure to go to his appointed place of duty and for being disrespectful in language towards a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty, and restriction.  

6.  On 9 July 1991, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct – a pattern of misconduct.  He cited as the bases for his recommendation the applicant’s disciplinary record; and his failure to respond to repeated counseling sessions regarding his lack of respect for superiors, his job performance, maintaining the appearance of his living quarters, his personal attitude, and his physical condition.

7.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf. 

8.  The appropriate authority approved the recommendation for discharge on 11 July 1991 and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 23 July 1991 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – pattern of misconduct.  He had served 1 year, 1 month, and 10 days of total active service.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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 (emphasis added), 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.

13.  Army Regulation 635-200, paragraph 3-7b, also 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.
 
DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant’s contentions have been noted.  However, his overall record of undistinguished service when compared to his repeated misconduct simply does not rise to the level of a fully honorable discharge. 

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

__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)                                         AR20080006491



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ABCMR Record of Proceedings (cont)                                         AR20080006491



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