IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080011422 


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 be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was very immature at the time of his discharge, but that since that time, he has been a law-abiding and productive citizen, and believes that he is a good candidate for a discharge upgrade.   

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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.  The applicant's military records show that he enlisted in the Regular Army on 3 July 1985.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewman).  He was then reassigned to Fort Campbell, Kentucky for what would be his only permanent duty assignment.

3.  On 29 April 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior noncommissioned officer (NCO).  His punishment consisted of a forfeiture of $167.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty.

4.  On 18 November 1986, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior NCO.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

5.  On 27 February 1987, a mental status evaluation was conducted on the applicant, and he was cleared for any administrative action deemed appropriate by his command.

6.  On 23 March 1987, the applicant's commanding officer informed him that he was initiating action under Chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel) to determine whether he should be discharged from active duty due to a pattern of misconduct.  The applicant's commanding officer stated that the recommendation for the applicant’s elimination was based on the fact that the applicant had accepted NJP on two occasions, and he had received several counseling statements for disobeying orders which showed that he had a bad attitude and a lack of respect for authority.  He also indicated that he was recommending the applicant's elimination because all other attempts to make him a useful Soldier had failed, and that all attempts toward rehabilitating him had met with negative results.  The applicant was also advised of his rights.

7.  Also on 23 March 1987, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Chapter 14, Army Regulation 635-200 and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected to waive consideration of his case and personal appearance before a board of officers, waived his right to counsel, and elected not to submit statements in his own behalf.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 

8.  On 2 April 1987, the proper separation authority approved the applicant's discharge under the provisions of Chapter 14, Army Regulation 635-200, and directed that he be issued a General Discharge Certificate.  He also waived the rehabilitative transfer requirement.  On 16 April 1987, the applicant was discharged accordingly.  

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

10.  The applicant essentially stated that he was very immature at the time of his discharge, but that since that time, he has been a law-abiding and productive citizen, and believes that he is a good candidate for a discharge upgrade.   

11.  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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.  

12.  Army Regulation 635-200, paragraph 3-7a also provides, in pertinent part, 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.

13.  Army Regulation 635-200, paragraph 3-7b further provides, in pertinent part, 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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that he was immature at the time was considered.  Records show that the applicant was nearly 19 years old at the time of his enlistment, and was 20 years old at the time separation proceedings were initiated on him.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The applicant's contention regarding his post service conduct was also considered.  However, good post service conduct alone is not a basis for upgrading a discharge.  
  
4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

5.  The applicant's record shows that he accepted NJP under Article 15 of the UCMJ on two occasions for willfully disobeying lawful orders from his superior NCOs, and was repeatedly counseled for multiple deficiencies.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout his separation process, regularity must be presumed in this case. 

6.  The applicant's entire record of service was considered.  However, the offenses committed by the applicant so far outweighs his record of military service that upgrade of his discharge cannot be justified.  In view of the foregoing, there is no basis for upgrading the applicant's general discharge to an honorable discharge.





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.




      _______ _ 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)                                         AR20080011422



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ABCMR Record of Proceedings (cont)                                         AR20080011422



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