IN THE CASE OF:
BOARD DATE: 2 October 2008
DOCKET NUMBER: AR20080012273
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 other than honorable conditions (UOTHC) be upgraded.
2. The applicant states that he was young and ignorant when he enlisted. He was influenced by older Soldiers who corrupted him. He also had a superior who made it very difficult for him to do his job, which he did not handle very well.
3. The applicant continues that there were other stressors which contributed to his behavior at the time. Those included his mother becoming gravely ill and his girlfriend becoming pregnant.
4. The applicant does not provide any additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 30 January 1987, was awarded the military occupational specialty of food service specialist, and was promoted to pay grade E-4.
3. In an undated memorandum, the applicants commander notified him of his intention to recommend his discharge for a pattern of misconduct, and of his rights in conjunction with that recommendation. The commanders stated reasons for the recommendation was the applicants acceptance of nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice for being absent without leave (AWOL) and his numerous counseling statements for not being at his appointed place of duty.
4. The applicant waived his rights, including the right to have a board of officers consider his case.
5. The applicants commander then forwarded his recommendation to discharge the applicant, and that recommendation was approved by the appropriate authority.
6. Accordingly, the applicant was discharged UOTHC on 17 March 1992 for a pattern of misconduct. The applicant was over 24 years old when he was discharged and had a total of 5 years and 23 days of active duty.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant was over 24 years old when he was discharged, had served in pay grade E-4, and had served 5 years and 23 days of active duty. As such, his contention that he was young and ignorant is not supported.
2. The applicant has not submitted any documentation to support his contentions that he was corrupted by older Soldiers, that his mother was gravely ill, or that his girlfriend was pregnant. These certainly would have been matters to raise at a board hearing if the applicant had not waived his right to have a board of officers consider his case.
3. The applicants numerous counseling statements are clearly indicative of a pattern of misconduct, especially when his NJP for being AWOL was included.
4. In view of the foregoing, there is no basis for granting the applicants 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) AR20080012273
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ABCMR Record of Proceedings (cont) AR20080012273
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