IN THE CASE OF:	   

		BOARD DATE:	        25 November 2008

		DOCKET NUMBER:  AR20080014406 


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 honorable.

2.  The applicant states, in effect, that when he signed his enlistment contract he enrolled in the Montgomery GI Bill (MGIB) and payroll deductions were made.  He contends that he is pursing further education and cannot apply for the MGIB until his discharge has been upgraded to honorable.   

3.  The applicant provides no additional evidence 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 enlisted in the Regular Army on 18 September 1987 for a period of 3 years.  His DA Form 3286-60/1 (Statement for Enlistment US Army Enlistment Options) shows he enlisted for the U.S. Army Training of Choice Enlistment Option.  He successfully completed One Station Unit Training in military occupational specialty 11C (indirect fire infantryman).  

3.  On 23 February 1989, nonjudicial punishment was imposed against the applicant for disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty, and being absent without leave (AWOL) from 3 January 1989 to 5 January 1989.  His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction, and extra duty.    

4.  On 31 January 1990, nonjudicial punishment was imposed against the applicant for being AWOL from 18 January 1990 to 19 January 1990.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.     

5.  Between 11 March 1988 and 18 May 1990, the applicant was counseled on numerous occasions for various infractions which included failure to meet Army standards, numerous failures to repair, and speeding on post.

6.  On 9 March 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, for misconduct (pattern of misconduct).  His unit commander based his recommendation for separation on the applicant’s AWOL, failures to repair, and numerous adverse counseling statements.

7.  On 13 March 1990, the applicant consulted with counsel.  He acknowledged that he was not entitled to have his case heard by an administrative separation board if he had less than 6 years of total active and reserve military service at the time of separation and he acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected not to submit a statement in his own behalf.  

8.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he departed AWOL on 3 April 1990.  

9.  On 27 April 1990, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  Accordingly, the applicant was discharged on 3 May 1990 under honorable conditions (a general discharge) under the provisions of Army Regulation
635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 2 years, 6 months, and 12 days of creditable active service with 34 days of lost time due to AWOL.     
11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining educational benefits.

2.  The applicant’s record of service included numerous adverse counseling statements, two nonjudicial punishments, and 34 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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





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.



      ________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)                                         AR20080014406



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ABCMR Record of Proceedings (cont)                                         AR20080014406



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