IN THE CASE OF:	  

		BOARD DATE:	       4 September 2008

		DOCKET NUMBER:  AR20080009596 


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

2.  The applicant states he was told at the time of his discharge that he should have it upgraded to an honorable discharge after six months.  The applicant further states, "From the time of my discharge up until 3 yrs I was a practicing alcoholic/addict.  I now have 3 yrs clean & sober and am trying to clean up my past."

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 22 October 1985; a Certificate of Completion from the Riverside County Substance Abuse Program, dated 
20 June 2006; an undated Letter of Support from an associate; and a 2-page Superior Court of California, County of San Bernardino, Probation Review Hearing, dated 23 August 2006.

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 the Regular Army on 30 January 1984.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).

3.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  20 July 1984 for missing formation and not reporting to work on time; 25 July 1984 for missing formation; 20 August 1984 for missing formation and not being at his appointed place of duty; and 5 October 1984 for missing physical training formation and failing to shave.

4.  On 22 April 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty.

5.  The applicant's record reveals additional disciplinary history that includes his acceptance of general counseling statements on the following dates:  4 May 1985 for failing to be at his appointed place of duty and disobeying a lawful order; 25 June 1985 for disobeying a lawful order; 29 July 1985 for missing formation; 30 July 1985 for poor work performance; and 5 August 1985 for poor on duty and off duty performance.

6.  On 22 August 1985, the applicant accepted NJP under Article 15, UCMJ for making a false statement.

7.  On 2 October 1985, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for patterns of misconduct.  The reason cited by the commander was the applicant's failure to make battery formations, his lackadaisical attitude, his being counseled on numerous occasions, and poor duty performance.

8.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel and did not submit a statement on his own behalf.
9.  On 8 October 1985, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 22 October 1985, the applicant was separated from the service after completing a total of 1 year, 
8 months, and 13 days of creditable active service with no lost time.

10.  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, 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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

11.  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.  

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's post service achievements and conduct are noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge and, upon review, the good post service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  Although the applicant contends that he was told after six months he should have his discharge upgraded to a full honorable discharge, there is no policy or regulation within the Army which allows automatic upgrading of discharges.  

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's records show that he received two Article 15s and had numerous negative counselings.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______ _xxxx______   ___
               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)                                         AR20080009596





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ABCMR Record of Proceedings (cont)                                         AR20080009596



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