IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080015998 


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 that his general discharge is preventing him from getting his education.

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 31 May 1988 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 16S (man portable air defense/pedestal mounted stinger crewmember).  On 13 November 1990, he was honorably discharged for immediate reenlistment.  He reenlisted on 14 November 1990 for a period of 4 years.    

3.  On 3 April 1991, nonjudicial punishment was imposed against the applicant for assault, disobeying a lawful order, and using disrespectful language.  His punishment consisted of a reduction to E-3 and a forfeiture of pay.  

4.  On 19 August 1991, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-2 (suspended), a forfeiture of pay (suspended), and extra duty.  

5.  On 13 September 1991, the applicant was arrested by civil authorities for unlawful use of a weapon (a Smith and Wesson .357 magnum).  On 
26 September 1991, he pled guilty to the offense and was sentenced to 79 days in jail. 

6.  On 2 October 1991, the suspended portions of the applicant's punishment imposed on 19 August 1991 were vacated.

7.  On 29 October 1991, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  On 29 October 1991, he consulted with counsel and waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than honorable.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he elected to submit a statement on his own behalf.  In summary, he stated that he served his first three years honorably and that he reenlisted for college benefits.  He also stated that when the war started things started going downhill (his job status and at home with his wife).  He pointed out that he would not be able to use the Montgomery G.I. Bill with a general discharge.         

8.  On 29 October 1991, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He cited the applicant’s conviction for having a loaded .357 Smith and Wesson handgun in his possession while inside a night club in Kansas.

9.  The separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  Accordingly, the applicant was discharged on 16 December 1991 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 5 years, 11 months, and 22 days of creditable active service.    

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 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 during his last enlistment included two nonjudicial punishments.  It appears he also committed a serious civil offense while in the Army.  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.    

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.




      _______ _   _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)                                         AR20080015998





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015998



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1