IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011319 


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 an upgrade of his discharge. 

2.  The applicant states that he recognizes that what he did was wrong and that he was immature at the time and he deeply regrets his misconduct.  He states that an upgrade of his discharge would allow him to finish school.  He further states that his military experience has helped him as a civilian, and he looks forward to continuing as an auditor once his degree is obtained.         

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 29 June 1994, 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 records show he enlisted in the Regular Army for a period of 4 years on 30 June 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  The highest grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Air Assault Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements, significant acts, or special recognition during his military service.   

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing meals from the dining facility, of a value of less than $100.00, on three occasions, on or about 11 December 1993, on or between 15 December 1993 and 16 December 1993, and on or about 6 January 1994.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $466.00 pay per month for two months (suspended until 28 August 1994), 45 days of restriction, and 45 days of extra duty.   

5.  On 14 March 1994, the applicant and another Soldier were apprehended by the Fort Campbell, Kentucky, Military Police, when the two Soldiers were observed removing a hat, valued at $14.95; and two Mariah Carey CDs, valued at $11.95 each, from the Main Exchange.  The two Soldiers were detained, read their rights, and released to their units.

6.  On 5 April 1994, the suspension of the applicant’s punishment pertaining to
forfeiture of $466.00 pay per month for two months was vacated.

7.  On 6 April 1994, the applicant was issued a Traffic Point Warning Notice by his immediate commander after he (the applicant) had accumulated 9 traffic violations between 31 March 1994 and 1 April 1994. 

8.  On 25 May 1994, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct.  Specifically, the immediate commander cited the applicant’s incidents of wrongfully obtaining meals from the dining facility, and shoplifting.   


9.  On 25 May 1994, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel on 7 June 1994, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He also acknowledged that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both, Federal and State laws.

10.  On 21 June 1994 (erroneously shown as 25 May 1994), the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of AR 635-200 due to a pattern of misconduct.  The immediate commander cited the applicant’s wrongfully obtaining meals from the dining facility and his shoplifting.  The immediate commander further recommended a waiver of the requirement for a rehabilitative transfer and recommended a General Discharge Certificate. 

11.  On 21 June 1994, the applicant’s intermediate commander reviewed the discharge packet pertaining to the applicant and recommended approval of the applicant’s discharge with a General Discharge Certificate.   

12.  On 23 June 1994, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of AR 635-200 by reason of misconduct and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 29 June 1994.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions character of service.  This form further confirms he completed a total of 2 years of creditable military service. 

13.  On 5 March 1999, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of her discharge.

14.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than 

honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  AR 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant had a history of infractions and misconduct; including one instance of Article 15, multiple instances of traffic violations, various letters of indebtedness to civil and military authorities, and a history of performance and disciplinary counseling by his chain of command.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.   The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief. 






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        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)                                         AR20080011319



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ABCMR Record of Proceedings (cont)                                         AR20080011319



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