IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011438 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that while the record is correct, he desires his discharge to be upgraded to fully honorable in order to improve his career possibilities.  He goes on to state that he had only one incident during his otherwise above average performance that led to his discharge.  He also states that he sincerely regrets his judgment that led to the infraction. 

3.  The applicant provides no additional documents with 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 enlisted in Richmond, Virginia on 17 July 1991 for a period of 2 years and 18 weeks and training as an armor crewman.  He completed his one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to Fort Sill, Oklahoma for his first and only duty assignment.  He was advanced to the pay grade of E-3 on 17 July 1992.

3.  On 19 July 1992, the applicant was arrested and charged with burglary.  On 29 July 1992, the applicant’s commander initiated a recommendation to bar the applicant from reenlistment.  The applicant elected not to submit a statement in his own behalf and the battalion commander approved the bar to reenlistment on 4 August 1992.  

4.  Meanwhile, on 30 July 1992, nonjudicial punishment was imposed against the applicant for being disorderly in Archer City Texas, which was conduct of a nature to bring discredit to the Armed Forces.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.  The applicant did not appeal the punishment.

5.  On 31 July 1992, the applicant’s commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He cited as the basis for his recommendation the applicant’s arrest for burglary on 19 July 1992. 

6.  The applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.  He also directed that the applicant not be transferred to the Individual Ready Reserve.

8.  Accordingly, the applicant was discharged under honorable conditions on 15 September 1992, under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He had served 1 year, 1 month and 29 days of total active service.  

9.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate.

11.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

12.  Paragraph 3-7b also 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’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s record of service has been reviewed; however, his service is not sufficiently mitigating to warrant relief when compared to the nature of his misconduct.  His service simply does not rise to the level of a fully honorable 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. 
  



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)                                         AR20080011438



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ABCMR Record of Proceedings (cont)                                         AR20080011438



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