IN THE CASE OF:	  

		BOARD DATE:	 
		DOCKET NUMBER:  AR20080008686 


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), under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he was married at the time and they wanted him to get a divorce because he was having marital problems.  He understands that he messed up and he now wants to make it right.  He has been trying to get back in [the Army] since his discharge.  He further states that the Army is where he belongs.

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 11 June 2002, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).  He attained the grade of private first class/E-3.  He received the National Defense Service Medal; the Army Service Ribbon; the Overseas Service Ribbon; the Expert Marksmanship Qualification Badge with Automatic Rifle Bar; the Expert Marksmanship Qualification Badge with Machinegun Bar; and the Expert Marksmanship Qualification Badge with Tank Weapons Bar.

3.  On 19 June 2003, the applicant accepted a summarized nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for dereliction of duty by willfully failing to obey the pass and leave policy memorandum.  His punishment included 7 days extra duty and restriction.

4.  The applicant's records reveal a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on 7 August 2003, for disobeying a lawful order from a noncommissioned officer (NCO) to immediately return to the barracks after chow; stealing an MI Operation Surma Playstation 2 video game, a value of $49.95, the property of the Army & Air Force Exchange Service (AAFES); and stealing a Microsoft Windows XP, a value of $99.95 from AAFES;  His punishments included reduction to pay grade E-2, forfeiture of $316.00 pay per month for 1 month, and 9 days restriction and extra duty.

5.  The applicant's records also reveal a disciplinary history that includes his acceptance of NJP under the provisions of Article 15 of the UCMJ on
11 February 2004, for stealing a Man Hunt Playstation 2 video game, a value of $49.95, the property of AAFES.  His punishments included reduction to pay grade E-1, forfeiture of $597.00 pay per month for 2 months, and 45 days restriction and extra duty.

6.  The applicant's official record also shows an extensive history of formal counseling, to include substandard performance, being overweight, disobeying direct and lawful orders from NCOs and commissioned officers, insubordination to NCOs, lying to NCOs, failing to go to his prescribed place of duty, losing Government property, failing the Army Physical Fitness Test, and traffic violations.

7.  On 25 February 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct – pattern of 
misconduct, with a GD.  The unit commander indicated that he was initiating discharge action because the applicant stole items from AAFES, disobeyed an NCO, and was derelict in the performance of his duties.  

8.  On 27 February 2004, the applicant consulted with legal counsel and did not submit a statement in his own behalf.  He acknowledged that he understood the unit commander was recommending him for a GD, and that he did not have the right to have his case heard before an administrative elimination board unless a characterization of service of under other than honorable conditions was recommended prior to final action in his case and because he did not have 6 years of total active and/or reserve military service.  He also acknowledged that he understood he may be ineligible for many or all benefits as a veteran under both and Federal and State laws.  He finally acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading.  However, an act of consideration by either board did not imply that his discharge would be upgraded. 

9.  On 8 March 2004, the intermediate commander reviewed the applicant's separation action and recommended that he be discharged under the provisions of Army Regulation 635-200, Chapter 14-12b, for misconduct – pattern of misconduct, with a GD.

10.  On 8 March 2004, the separating authority waived the applicant's rehabilitative transfer requirement and directed he be discharged with a GD and that he not be transferred to the United States Army Reserve Control Group.

11.  On 25 March 2004, the applicant was discharged by reason of misconduct – pattern of misconduct, in pay grade E-1, after completing 1 year, 9 months, and 15 days of active military service.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  


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 (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.

14.  There is no evidence that the applicant applied to the ADRB for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  The applicant's personnel record shows that he accepted NJP on 3 occasions, and was counseled on numerous occasions for various infractions of discipline. 

2.  Before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies, which could lead to separation.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the administration of NJP.  The applicant failed to respond appropriately to these efforts.  Since the applicant was afforded a reasonable opportunity to overcome noted deficiencies and he did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

3.  Given the above, the character of the applicant's discharge is commensurate with his overall record of military service.  Inasmuch as an under other than honorable conditions discharge is normally considered appropriate for the applicant's type of discharge, his command gave a fair assessment of his overall quality of service and determined that he deserved a GD.  

4.  The applicant's contentions are noted; however, there is no compelling evidence to support the notion that because of marital problems the applicant engaged in the type of misconduct shown in his official record.  There is also no evidence to support the applicant's contention that his command wanted him to get a divorce.  The record shows that he engaged in misconduct contrary to 
Army standards and regulations, and his command addressed solely his conduct on the job, and not his personal life.  As such, his contentions are insufficiently mitigating and do not provide a basis upon which to base a change in his characterization of service.

5.  Given the foregoing, there is no basis upon which to grant the applicant's request.  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 any 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)                                         AR20080008686



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ABCMR Record of Proceedings (cont)                                         AR20080008686


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