IN THE CASE OF:
BOARD DATE: 21 August 2008
DOCKET NUMBER: AR20080008504
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 a discharge upgrade.
2. The applicant states he has two brain tumors and needs treatment. He promised his terminally ill father before he died that he would seek a discharge upgrade in order to obtain medical benefits.
3. The applicant provides:
a. DD Form 214 (Certificate of Release or Discharge From Active Duty), dated 23 May 1986.
b. DD Form 214, dated 12 July 1988.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. With prior service in the Washington Army National Guard (WAARNG), he enlisted in the Regular Army for 3 years on 9 January 1987. He was awarded his WAARNG military occupational specialty (MOS) of 54B (Chemical Operations Specialist) and assigned to Headquarters and Headquarters Company, 84th Chemical Battalion, Fort McClellan, AL.
3. The record show the applicant was involved in various acts of indiscipline, as follows:
a. Driving under the influence of alcohol on 19 March and 12 June 1988.
b. Nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for provoking words on/about 20 January 1988.
c. Summarized NJP for failure to go to his place of duty on/about 19 December 1987.
d. Civil conviction for disorderly conduct and criminal mischief on 12 December 1987.
4. On 23 June 1988, the applicant's commander initiated action to administratively discharge him for misconduct under the provisions of chapter 14, Army Regulation (AR) 635-200. The applicant sought and received counsel from an officer of the Judge Advocate General's Corps.
5. On 30 June 1988, the applicant's commander forwarded the administrative discharge packet recommending the applicant be separated with a General Discharge. The action was approved on 1 July 1988 and the approving authority directed the applicant receive a General Discharge.
6. On 12 July 1988, the applicant was given a General Discharge under the provisions of paragraph 14-12b, AR 635-200 for misconduct. He had 1 year, 6 months, and 4 days of creditable service on his 3-year enlistment.
7. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's statute of limitations.
8. Army Regulation 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 Soldiers 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. 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's service record clearly shows he was a substandard Soldier who was involved in a wide variety of indiscipline with both civil and military authorities.
2. The applicants discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is actually lenient considering the applicant's overall record of military service.
3. The Board sympathizes with the applicant as he undergoes medical difficulties; however, the Army Board for Correction of Military Records does not upgrade a discharge in order to qualify an applicant for benefits. Discharges are upgraded based on inequity or injustice. The applicant has not shown and the record does not support such an argument.
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) AR20080008504
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