IN THE CASE OF:	  

		BOARD DATE:	       18 December 2008

		DOCKET NUMBER:  AR20080015461 


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 an upgrade of his discharge. 

2.  The applicant did not make a statement.

3.  The applicant did not provide any additional documentary 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's records show that he enlisted in the Regular Army for a period of 4 years on 2 January 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 51R (Interior Electrician).  The highest rank/grade he attained during his military service was private (PVT).

3.  The applicant’s records further show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts or achievements during his military service.   

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 15 July 1986, for being derelict in the performance of his duties in that he negligently failed to stay awake while on guard duty, on or about 20 June 1986.  His punishment consisted of a forfeiture of $75.00 pay, 14 days of restriction, and 14 days of extra duty; and

	b.  on 15 September 1986, for malingering and failing to be at his appointed place of duty, on or about 15 September 1986.  His punishment consisted of 14 days of restriction and 14 days of extra duty.  However, a copy of this Article 15 is not available for review with this case.

5.  On 23 November 1986, the applicant was apprehended by military police after he struck another Soldier on the back with an open hand and fled the area.  He was processed, read his rights, and released to his unit.

6.  On 27 January 1987, the applicant accepted nonjudical punishment under the provisions of Article 15 of the UCMJ for failure to go to his Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) appointment, on 1 December 1986.  His punishment consisted of 5 days of restriction and 5 days of extra duty. 

7.  On 13 March 1987, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing the applicant’s three instances of nonjudicial punishment and several instances of disobeying orders, being disrespectful, missing appointments, and failure to prepare.  The applicant was furnished a copy of this bar; however, he elected not to submit a statement on his own behalf.  This bar was subsequently approved by the approval authority. 



8.  On 12 March 1987, by memorandum, the Baumholder Community Counseling Center notified the applicant’s immediate commander that since the applicant's earlier enrollment in the ADAPCP for excessive use of alcohol, he repeatedly missed scheduled group sessions and continued to abuse alcohol.  Accordingly, due to his poor rehabilitation, he was considered an ADAPCP rehabilitative failure.  

9.  On 29 April 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Personnel Separations), for a pattern of misconduct.  

10.  On 29 April 1987, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of 
discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected not to submit a statement on his behalf.   

11.  On 29 April 1987, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of AR 635-200 due to a pattern of misconduct.  The immediate commander remarked that due to the applicant’s pattern of misconduct, his continued service would be prejudicial to the good order and discipline of the Army and will only interfere with the mission of the unit and Soldiers.  He also recommended rehabilitative transfer requirements be waived and the applicant be discharged with a General Discharge Certificate. 

12.  On 29 April 1987, the applicant’s intermediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.  He further recommended approval of the waiver for the rehabilitative requirements.

13.  On 30 April 1987, the separation authority approved the waiver of the rehabilitative requirements and the applicant’s discharge, under the provisions of chapter 14 of AR 635-200, by reason of misconduct, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 12 May 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further shows he completed a total of 1 year, 4 months, and 11 days of creditable military service.

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may 
direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  AR 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. 

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.   

2.  The evidence of record shows that the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His record of service shows three instances of nonjudicial punishment, a bar to reenlistment, an ADAPCP rehabilitation failure, and an arrest by military police.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

3.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.



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      _______ _   _______   ___
               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)                                         AR20080015461



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ABCMR Record of Proceedings (cont)                                         AR20080015461



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