IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010138 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, his discharge should be upgraded because of unjust treatment and personal events that occurred.   

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 27 January 1983, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 21 July 1983, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed the training requirements and was awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  On 20 May 1986, the applicant reenlisted for a period of 3 years.  He attained the grade of specialist/E-4.  He received the Army Achievement Medal, the Army Good Conduct Medal, the Army Service Ribbon, and the Overseas Service Ribbon.

3.  On 24 February 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 3 – 9 January 1987.  His punishment consisted of a reduction to private first class/E-3 and 45 days of restriction and of extra duty.  

4.  On 9 March 1987, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for disorderly conduct at the Sunburst Club.  A copy of this Article 15 is not contained in the official record.

5.  On 26 March 1987, a Bar to Reenlistment was imposed against the applicant.
 
6.  On 7 October 1987, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  His punishment consisted of a reduction to private/E-1, a forfeiture of $325.00 pay per month for 2 months and 45 days of restriction and of extra duty.  
 
7.  The applicant was counseled on numerous occasions for failing to go to his appointed place of duty, failing the Army Physical Fitness Test, leaving his place of duty without authority, poor attitude, and failing to show up for extra duty.

8.  On 1 November 1987, 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 an under other than honorable conditions discharge.   

9.  On 5 November 1987, after consulting with counsel, the applicant requested to have his case heard by an administrative separation board.  However, on
18 November 1987, the applicant waived his right to appear before an administrative separation board.



10.  On 30 November 1987, the separation authority waived further rehabilitative efforts, and directed that the applicant be discharged with an under other than honorable conditions discharge. 

11.  On 8 December 1987, the applicant was discharged by reason of misconduct – pattern of misconduct after completing 4 years, 4 months, and 
12 days of active military service.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  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.  

14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his under than honorable conditions discharge be upgraded.

2.  The available evidence also shows the applicant was properly discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The available evidence shows the applicant served in the military more than
4 years, he attained the grade of specialist/E-4, and received the Army Achievement Medal and the Army Good Conduct Medal.  He did not commit a disciplinary infraction the first three and a half years of his service.  He then went AWOL for 6 days, wrongfully used marijuana, and was counseled on numerous occasions for his misconduct.  The command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of NJP.  The applicant failed to respond appropriately to these efforts and he was subsequently identified for administrative separation. 

4.  Given the applicant's various incidents of misconduct, his command was compelled to consider him for administrative elimination, and his conduct was deserving of an administrative discharge.  However, while his command was within its discretion to characterize his service as under other than honorable conditions, in view of his previous three years of exemplary service and conduct, his service was not deserving of an under other than honorable conditions discharge.  

5.  Based on the above, and as a matter of equity, the applicant's record should be corrected to show that he was discharged on 8 December 1987 with a general discharge, under honorable conditions. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was not sufficient to warrant a recommendation for relief.  There were no errors made on the part of the commanders in adjudicating the individuals case.  As a result, the Board recommends that the individual’s request be denied based on the fact that there is no finding of error or injustice that would warrant upgrading the characterization of the individual’s military service.




      ___        XXX                ___
                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)                                         AR20080010138



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ABCMR Record of Proceedings (cont)                                         AR20080010138



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