IN THE CASE OF:	

		BOARD DATE:	  18 December 2008 

		DOCKET NUMBER:  AR20080015449 


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 under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was told his discharge was based on his weight but upon being discharged he found it was for misconduct - commission of a serious offense.  He states that this issue had already been addressed and settled.  He states he served his country for 2 years without incident and he does not feel a single episode should keep him from receiving what he has earned.

3.  The applicant provides no additional evidence or official documentation 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 military personnel record shows he initially enlisted in the Regular Army on 14 June 1988 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty of 16S (Man Portable Air Defense System Crewmember).

3.  On 3 November 1988, the applicant was assigned to the Headquarters and Headquarters Battery, 2nd Battalion, 5th Air Defense Artillery at Fort Hood, Texas.

4.  On 24 April 1989, the applicant's commander notified him that he was initiating action to discharge him for patterns of misconduct under the provisions paragraph 14-12b and c of chapter 14 of Army Regulation 635-200 due to his use of cocaine and uttering worthless checks.  The commander indicated that he was recommending the applicant be given a general discharge under honorable conditions.

5.  The commander advised the applicant of his right to consult with consulting counsel, to submit statements in his own behalf, obtain copies of documents that will be sent to the separation authority, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.

6.  On 24 April 1989, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of paragraph 14-12b and c of chapter 14 of Army Regulation 635-200 for misconduct.  The applicant submitted statements in his own behalf and he requested copies of documents that would be sent to the separation authority supporting the proposed separation.

7.  The applicant also acknowledged that as the result of the issuance of a general discharge under honorable conditions he may expect to encounter substantial prejudice in civilian life.

8.  The applicant's commander recommended him for discharge under the provisions of paragraph 14-12b and c of chapter 14 of Army Regulation 635-200 by reason of his use of cocaine and uttering worthless checks and that his service be characterized as under honorable conditions.  The commander indicated the applicant had accepted nonjudicial punishment for use of cocaine and that he had been counseled on poor physical training performance.  



9.  On 26 April 1989, the applicant's intermediate commander recommended approval of the applicant's separation with a general discharge.  However, the intermediate commander also recommended separation action be suspended for 6 months.  He indicated the applicant had demonstrated good potential for rehabilitation and was fully capable of successful performance.  He stated the applicant's indebtedness problems had been resolved.

10.  On 28 April 1989, the appropriate authority approved the commander's recommendation to discharge the applicant under the provisions of paragraph 14-12b and c of chapter 14 of Army Regulation 635-200.  However, the execution of the discharge was suspended for a period of 6 months, at which time, unless the suspension is sooner vacated, the discharge would be remitted without further action.

11.  On 12 July 1989, the applicant's commander requested that the suspension of the applicant's approved discharge under chapter 14 of Army Regulation be vacated.  The commander indicated that the applicant had failed to make satisfactory progress for two consecutive months in the Army Overweight Program.

12.  DA Forms 5500-B (Body Fat Content Worksheet [Male]) dated from 19 June 1989 to 20 September 1989 show the applicant's body fat, with an allowance of 22 percent, went from 25.6 percent to 29.03 percent.

13.  On 25 September 1989, the applicant's commander notified him that he was recommending that the suspension of the execution of his approved discharge under the provisions of chapter 14 be vacated due to the applicant's failure to meet weight control standards.  The applicant signed the first endorsement indicating that he understood the proposed action against him and did not desire to submit a statement on his own behalf.

14.  On 27 September 1989, the appropriate authority vacated the suspension of the execution of the discharge approved on 28 April 1989 and approved the applicant's discharge under the provisions of paragraph 14-12b and c of
chapter 14 of Army Regulation 635-200.  The issuance of a General Discharge Certificate was also directed.

15.  On 10 October 1989, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.  He had completed 1 year, 3 months, and 27 days of active service that was characterized as under honorable conditions.  

16.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph
14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  Paragraph 14-12c provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

17.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.  The applicant contends his general discharge should be upgraded to an honorable discharge because he was told he was being discharged based on his weight.  He contends the issue of his misconduct had already been addressed and was settled.

2.  The applicant had been approved for a discharge under conditions other than honorable under the provisions of Chapter 14 of Army Regulation 635-200 on 
28 April 1989.  However, the separation authority suspended the execution of the discharge for a period of 6 months.

3.  The applicant's continued lack of progress in the weight control program was considered conduct prejudicial to good order and discipline and on 25 September 1989 the applicant's commander notified him that he was recommending that the suspension of the execution of the approved discharge under the provisions of Chapter 14 be vacated.  The applicant signed the endorsement showing he understood the proposed action and did not desire to make a statement.  Therefore, the applicant's contention that he did not know his discharge was due to the commission of a serious offense as previously approved is without merit.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed 
and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

5.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  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 that requirement.  Therefore, there is insufficient basis to upgrade the applicant's discharge.

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)                                         AR20080015449



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ABCMR Record of Proceedings (cont)                                         AR20080015449



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