IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013972 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that he believes his discharge was too harsh for the misconduct he committed and that his command overreacted.  He also contends that without an upgrade of his discharge he will lose the employment he has maintained for the past 16 years due to new security regulations.

3.  The applicant did not provide additional documentary evidence 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.  On 14 June 1982, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 8 June 1983, he was discharged from the DEP and enlisted in the Regular Army for 4 years.  He completed the training requirements and was awarded military occupational specialty (MOS) 67N 
(UH-1 Helicopter Repairer).  He attained the grade of specialist/E-4.  On 21 January 1987, the applicant reenlisted for a period of 4 years.  Thereafter, he attended 54E (Chemical Operations Specialist) training and his primary MOS was changed to 54E.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received the Army Achievement Medal, the Army Good Conduct Medal (2nd Award), the Army Service Ribbon, the Overseas Service Ribbon, and the Aircraft Crewman Badge.  

4.  On 16 November 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for 2 specifications of failing to go to formation.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $216.00 (suspended) and 
14 days of restriction and of extra duty.  The suspension was vacated on 
3 January 1990.

5.  On 20 March 1990, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to the motor pool.  His punishment consisted of a reduction to private/E-2, a forfeiture of $203.00 suspended for 60 days and
14 days of extra duty.  

6.  The applicant's formal counseling history shows that he was counseled on
5 occasions for missing or being late to formation, once for failing to prepare for duty, and once for his attitude and uniform appearance.  He was also counseled on numerous occasions for indebtedness and his failure to pay his bills on time.
 
7.  On 6 April 1990, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14-12b of Army Regulation
635-200 (Enlisted Personnel Separations) by reason of misconduct – pattern of misconduct.  He indicated he was initiating action to separated the applicant because he failed to repair on 5 occasions and he was counseled on numerous occasions for nonpayment of his just debts.  The unit commander recommended the applicant receive a GD.  He also advised the applicant that the separation authority was not bound by his recommendation as to characterization of service, and that he may direct either a GD or an under other than honorable conditions discharge and that he was entitled to have his case heard before an administrative elimination board.
.
8.  On 11 April 1990, upon notification of his impending discharge, the applicant consulted with legal counsel and requested to appear before an administrative separation board.  He acknowledged that he understood the unit commander was recommending him for a GD but that the separation authority was not bound by this recommendation.  He also indicated that he understood he may be ineligible for many or all benefits as a veteran under both and Federal and State laws.  He finally acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading.  However, an act of consideration by either board did not imply that his discharge would be upgraded. 

9.  On 16 April 1990, the intermediate commander reviewed the elimination request, recommended that it be approved and that the applicant receive a GD.

10.  On 4 May 1990, the applicant waived his right to appear before an administrative separation board.  He again acknowledged that he understood the unit commander was recommending him for a GD but that the separation authority was not bound by this recommendation.  He also indicated that he understood he may be ineligible for many or all benefits as a veteran under both and Federal and State laws.  He finally acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board or the ABCMR for upgrading.  However, an act of consideration by either board did not imply that his discharge would be upgraded. 

11.  On 16 Mary 1990, the separating authority approved the discharge and directed the applicant be discharged with an under other than honorable conditions discharge.

12.  On 5 July 1990, the applicant was discharged by reason of misconduct – pattern of misconduct after completing 7 years and 28 days of active military service.

13.  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 and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and 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 appropriate for a Soldier discharged under this chapter.  
14.  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 (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.

15.  Army Regulation 635-200, paragraph 3-7b, 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to have jeopardized his rights.  

2.  The evidence of record shows the applicant provided over 6 years of honorable service, received the Army Achievement Medal and the Army Good Conduct Medal (2nd Award), and attained the grade of specialist/E-4.  Suddenly, without explanation, he encountered difficulty paying his bills on time and was counseled on numerous occasions for his indebteness, and he began missing formation and was ultimately given NJP for failing to repair on numerous occasions.  Prior to June 1989, the applicant was an exemplary Soldier.  

3.  A review of his discharge packet shows that both his unit commander and intermediate commanders recommended that he receive a GD.  However, the separation authority did not accept those recommendations and directed he be separated with an under other than honorable conditions discharge.  Notwithstanding the propriety of the applicant's discharge, the applicant's pattern of misconduct consisted of failing to repair and failing to pay his bills on time, not offenses generally considered of such egregious magnitude to warrant a characterization of service of under other than honorable conditions.  .  

4.  Based on the foregoing, the nature of the applicant's offenses, the recommendations of his unit and intermediate commanders, as well as the 
6 years of exemplary service given by the applicant, it would be just to correct his record to show that he was separated on 5 July 1990 with a GD. 

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was discharged on 5 July 1990 with a GD.




      _______ _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)                                         AR20080013972



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ABCMR Record of Proceedings (cont)                                         AR20080013972



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