IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080009379 


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, in effect, that his general discharge, under honorable conditions be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that he was victimized by identity theft indebtedness plus the fact that his unit entered the Gulf War.  He was given the choice to stay and prove his innocence.  He finally states that the error may hinder him from serving his country in a certain capacity. 

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 21 October 1977.  He was trained in and awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  His service was continuous through enlistments and extension and on 17 September 1983, he was promoted to Staff Sergeant (SSG)/pay grade E-6.  

3.  On 27 April 1990, the applicant accepted nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was 14 days of extra duty.

4.  On 15 May 1990, the applicant accepted NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-5 (suspended for 60 days) and 
45 days of extra duty.  

5.  Between May and August 1990, the applicant was formally counseled on four separate occasions for conduct and performance related issues that included missing formation, failure to repair, indebtedness and unsatisfactory performance of his duties.  On 6 June 1990, the applicant was reduced to pay grade E-5.  The reason for the reduction is not available. 

6.  On 20 September 1990, a Mental Status Evaluation cleared the applicant for separation.  

7.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a separation document (DD Form 214) that shows he was discharged on 15 October 1990, under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance with a discharge under honorable conditions (general).  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time, confirms the applicant completed a total of 12 years, 11 months and 25 days of creditable active military service.  He was awarded the Army Achievement Medal, the Army Commendation Medal w/2 Oak Leaf Clusters, the NCO Professional Development Ribbon numeral 3, the Army Service Ribbon, the Overseas Service Ribbon, the Good Conduct Medal 2nd award and the Sharpshooter Badge Rifle (M-16).   

8.  On 7 June 1995, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

9.  Chapter 13, of Army Regulation 635-200 (Personnel Separations), sets forth the basic authority for the separation of enlisted personnel.  At that time, this regulation required that separation action will be taken when, in the commander’s judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit.  There is no evidence in his available record nor has the applicant submitted any evidence to support any of his allegations.  

2.  Although, the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted 
DD Form 214 that identifies the applicant’s reason for discharge as unsatisfactory performance and the characterization of his service as under honorable conditions.

3.  After carefully evaluating the available evidence in this case, it is determined that the applicant’s discharge processing was conducted in accordance with law and regulations applicable at the time and that the character of his service is commensurate with his overall record of military service.  

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met; the rights of the applicant were fully protected throughout the separation process.  Therefore, in view of the foregoing and given the circumstances in this case, there is insufficient evidence to grant his request. 

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080009379



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ABCMR Record of Proceedings (cont)                                         AR20080009379



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