IN THE CASE OF:	  

		BOARD DATE:	 30 September  2008 

		DOCKET NUMBER:  AR20080012705 


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 under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that his record is unjust because at the time of the infraction he was under a lot of grief.  His grandfather had died and he did the wrong thing.  From his understanding at the time of his separation from service he thought that he could reenlist, but the narrative reason for his discharge stated “Misconduct.”  That statement of misconduct keeps him from reenlisting.  He just wants to serve his country and finish what he started 19 years ago.

3.  The applicant provides a self-authored statement 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 record shows he enlisted in the Regular Army and entered active duty on 27 June 1989.  He successfully completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 13R (Field Artillery Firefinder Radar Operator).  

3.  The applicant's record shows he was promoted to private first class (PFC) on 1 July 1990, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he received an Army Service Ribbon and the Army Lapel Button.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  On 16 April 1991, the applicant received nonjudicial punishment (NJP) for six incidents of failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was 14 days of restriction and extra duty. 

5.  On 5 November 1991, the applicant received NJP for operating a vehicle with a passenger in the car while drunk.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $422.00 pay (suspended to be automatically remitted if not vacated before 4 May 1992), and 45 days restriction and extra duty.

6.  The record also shows that the applicant was formally counseled for a myriad of disciplinary infractions by members of his chain of command on 10 separate occasions between December 1990 and July 1991.  

7.  On 7 January 1992, the applicant received NJP for the wrongful use of Marijuana on or about 23 November 1991.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $380.00 pay per month for 2 months (suspended to be automatically remitted if not vacated before 20 May 1992), and 45 days restriction and extra duty.     

8.  On 30 January 1992, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, Chapter 14-12c for commission of a serious offense, with a recommendation for a general under honorable conditions discharge.  He was advised of his rights.

9.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him and the effect of a waiver of those rights.  Subsequent to this counseling, the applicant elected to waive his rights to have his case considered by, and to a personal appearance before, a board of officers.  He also elected not to submit statements in his own behalf.  
10.  On 10 February 1992, the separation authority approved the applicant's discharge and directed the applicant receive a general under honorable conditions discharge.  On 26 February 1992, the applicant was discharged accordingly.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), as amended by a DD Form 215 (Correction to DD Form 214)  shows he held the rank of private/E-1 (PV1) and that he had completed a total of 2 years and 8 months of creditable active military service.

11.  Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an HD or a GD may be issued by the separation authority if warranted by the member's overall record of service, an under other that honorable conditions (UOTHC) discharge is normally appropriate for a Soldier discharged under this chapter.

12.  Army Regulation 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’s contention that his general discharge should be upgraded to honorable was carefully considered and found to be without merit. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's record of military service was not sufficiently meritorious for the separation authority to support an HD at the time of his discharge, nor does it support an upgrade at this time.  As a result, his discharge accurately reflected his overall record of undistinguished service and the narrative reason for separation was and still is appropriate.


3.  The evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time.  Therefore, lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

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

________  ________  ________  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.



      ______________________
               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)                                         AR20080012705



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ABCMR Record of Proceedings (cont)                                         AR20080012705



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