IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080007976


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 (GD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states he was wrongfully accused of stealing a watch from an Army and Air Force Exchange Service (AAFES) store in Panama.  He was with a friend who was looking at watches.  He was not interested in watches, but he did purchase music compact disks (CD) and tapes.  When he returned to his barracks, he was surprised to find there was a watch in the bag.  He informed a noncommissioned officer (NCO) of watch and the NCO said he liked it, so the applicant gave it to him.  The next day he learned that his company executive officer (XO) was searching for a watch.  The XO went to the applicant's bunk and looked under the pillow and found the watch.  Apparently, the NCO became frightened and placed the watch under the pillow.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

3.  The applicant provides no additional documentation.

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 served in the Regular Army (RA) from 14 April 1987 through 21 November 1989.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was separated with a GD under the provisions of Army Regulation (AR) 635-200, paragraph 14-12b, by reason of "Misconduct—pattern of misconduct."

3.  The applicant's service record contains several DA Forms 4856 (General Counseling Form).  These counseling forms describe a series of behavioral problems and misconduct, including:

	a.  22 August 1988 – violating company policy not to bring weapons into the barracks;

	b.  6 September 1988 – disobeying the lawful order of an NCO;

	c.  24 February 1989 – being absent from his place of duty, failing to pay attention to detail, poor personal and room appearance, failure to follow instructions, and lack of self-discipline;

	d.  30 March 1989 – failure to repair (did not attend mandatory company safety briefing), and failure to do the platoon physical training run;

	e.  9 June 1989 – failure to follow instructions not to wear civilian prescription sunglasses;

	f.  29 June 1989 – asleep while on guard duty; and

	g.  16 October 1989 – unsatisfactory conduct over a period of 9 months.

4.  On 4 July 1989, the applicant was arrested by the California Highway Patrol for the offense of drunk driving.  On 4 August 1989, he received a mandatory General Officer Memorandum of Reprimand.

5.  The applicant was issued a locally-imposed bar to reenlistment on 25 July 1989.

6.  On 11 October 1989, the applicant's chain of command referred him to Community Mental Health Services for a mental status evaluation.  His behavior was characterized as "guarded;" his mood was "angry:" and his thinking process was "clear."  He was determined to have no condition or defect which would warrant disposition through medical channels.

7.  On 25 October 1989, the applicant's company commander initiated administrative separation action against him under the provisions of chapter 14, AR 635-200.  The applicant acknowledged notification and consulted with legal counsel.  He provided a statement in which he requested he permitted to complete his term of service.  On 28 October 1989, the company commander formally requested the applicant be discharged.  In his request, he cited the applicant's counseling statements and his receipt of 2 Article 15 punishments [these records are not available].  He also requested that further rehabilitative actions be waived and that the applicant be issued a GD.

8.  On 14 November 1989, the approving authority waived further rehabilitative efforts and directed the applicant be discharged with a GD.  He was separated on 21 November 1989.

9.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.

10.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  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.  It states action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his GD be upgraded to an HD.

2.  The applicant describes an incident where he apparently was charged with shoplifting a watch from the (AAFES) exchange store in Panama; quite possibly this is the reason for one of the two Article 15 punishments he received.  

Whether or not he stole the watch is irrelevant, the fact remains that he knew he didn't buy the watch, yet he did not return it, but gave it away instead.  The entire event is indicative of his lack of responsibility and poor behavior.

3.  The applicant's record clearly demonstrates a lengthy pattern of misconduct.  His conduct and efficiency were uniformly rated as poor and he was a negative influence on morale and discipline within his unit.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Given that he could have received an under other than honorable conditions discharge, the character of his discharge is more than sufficient considering his overall record of military service.

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.



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               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)                                         AR20080007976



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ABCMR Record of Proceedings (cont)                                         AR20080007976



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