IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080011806 


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 discharge under honorable conditions (general) be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that the type of discharge that he received is too harsh considering the nature of his offenses.

3.  The applicant provides no additional information 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.  On 24 April 1985, the applicant enlisted in the Regular Army in Little Rock, Arkansas, for 3 years, in the pay grade of E-1.  He successfully completed his training as an armor crewman.

3.  The applicant’s records show that he was counseled on at least fourteen separate occasions for acts of misconduct between 6 February 1986 and 17 December 1986, for missing formation; a poor attitude and personal appearance; assault; leaving his appointed place of duty; being disrespectful; disobeying direct lawful orders; communicating a threat ; and for poor performance of duty. 

4.  A Urinalysis Testing Worksheet that was prepared on 2 April 1986 shows the applicant submitted a urine sample which tested positive for “THC.”

5.  The applicant had nonjudicial punishment (NJP) imposed against him on 13 June 1986 for willfully disobeying a lawful order from a noncommissioned officer and for wrongfully communicating a threat.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

6.  On 25 June 1986, NJP was imposed against the applicant for conduct unbecoming a Soldier (fighting) and for disobeying a lawful order.  His punishment consisted of extra duty.

7.  On 7 July 1986, NJP was imposed against the applicant for failure to go at the time prescribed, to his appointed place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

8.  On 18 December 1986, NJP was imposed against the applicant for leaving his place of duty; being derelict in the performance of his duties; and for assault.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

9.  On 21 January 1987, NJP was imposed against the applicant for assaulting another Soldier.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

10.  On 2 March 1987, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct.  His commanding officer cited illegal drug use, failure to go to his appointed place of duty; disobeying lawful orders, wrongfully communicating a threat, being derelict in his performance of duty, failure to remain awake and to be in proper uniform, being disrespectful towards noncommissioned officers, and failure to pay his civilian fines as the basis for the 

recommendation for discharge. The applicant acknowledged receipt of the notification on 2 March 1987 and, after consulting with counsel, he opted not to submit a statement in his own behalf. 

11.  On 9 March 1987, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

12.  The appropriate authority approved the recommendation for discharge on 23 March 1987 and directed the issuance of a General Discharge Certificate.  Accordingly, on 8 April 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 1 year, 11 months and 16 days of net active service and he was furnished a General Discharge Certificate.

13.  On 7 May 1991, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable.  The ADRB determined that his discharge was proper and his application was denied on 31 January 1994.

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s records show that he was counseled on fourteen separate occasions and he had NJP imposed against him on five occasions.  Considering his numerous acts of misconduct and his overall record of service, it does not appear that his general discharge is too severe.

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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080011806



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ABCMR Record of Proceedings (cont)                                         AR20080011806



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