IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080016477 


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 (under honorable conditions) discharge be upgraded.

2.  The applicant states he feels it is his duty to clear his past of any wrong doing he may have done.  He takes full responsibility for his bad choices while on active duty.  It has been over 18 years since his discharge and he has come to terms with his past.  He has been an active member in both the civilian and military communities, putting his talent to use to raise money and donations for the "Toys for Tots" program.  He asks that the Board afford him leniency.

3.  The applicant provides no 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 entered active duty on 9 March 1988.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  on 11 September 1988, for missing movement through neglect;

	b.  on 9 May 1989, for disrespectful language toward a noncommissioned officer (NCO) and failure to obey a lawful order from an NCO; and 

	c.  on 18 January 1990, for failure to go to his appointed place of duty on two occasions and disrespectful language toward an NCO.

4.  The applicant was involved in a physical altercation with another Soldier on 26 July 1989.  The record contains several witness reports wherein the applicant is described as the aggressor in the incident.  What, if any, disciplinary action was taken is not of record.

5.  On 13 December 1989, the applicant was released to civilian authorities on a civil warrant for child abuse.  The applicant was detained briefly until he was able to post bail.  The available documentation related to this incident shows that the applicant struck his 3-year old step-daughter across the face with sufficient force to leave a significant bruise.  The record includes the applicant's admission that he struck the child because she wouldn't stop crying.  The final outcome of this civilian charge is not of record.

6.  On 15 February 1990, the applicant's unit commander initiated separation proceedings under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13, for unsatisfactory performance.

7.  The applicant acknowledged the proposed separation.  He consulted with legal counsel and declined to submit a statement on his own behalf.

8.  On 28 February 1990, the applicant received a letter of reprimand (LOR) for unlawfully striking a child under the age of 16, i.e., his 3-year old step-daughter.

9.  The 5 March 1990 recommendation for separation notes that, in addition to the NJPs, the applicant had been counseled on numerous occasions concerning his inability to follow instructions, for not being at his appointed place of duty at the time prescribed, disrespect toward NCOs, military appearance and attitude, failure of physical fitness testing, and failure or poor performance on his job skills testing.
10.  The record contains a total of 23 negative counseling statements covering the period August 1988 through February 1990.

11.  The discharge authority approved the separation on 5 March 1990, waived further rehabilitation requirements, and directed that the applicant receive a General Discharge Certificate.

12.  On 19 March 1990, the applicant was discharged under honorable conditions for unsatisfactory performance.  He had 2 years and 11 days of creditable service and did not receive any personal awards.

13.  On 29 August 2001, the Army Discharge Review Board denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

14.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following pertinent information:

	a.  Chapter 3 outlines the criteria for characterization of service.

		(1)  Paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

		(2)  Paragraph 3-7a(1) in pertinent part states that "a Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article l5…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

		(3)  Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	b.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the 


commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he feels it is his duty to clear his past of any wrong doing he may have done.  He takes full responsibility for his bad choices while on active duty.  It has been over 18 years since his discharge and he has come to terms with his past.  He has been an active member in both the civilian and military communities putting his talent to use to raise money and donations for the "Toys for Tots" program.  He asks that the Board afford him leniency.

2.  The applicant's record shows he had disciplinary problems covering virtually his entire period of service as reflected by his 23 counseling statements, three NJPs, and an LOR.

3.  The applicant did not meet the standards of acceptable conduct and performance of duty warranting an honorable characterization of service.  He exhibited a pattern of inappropriate behavior and as shown by his LOR and NJP actions, he committed acts that constitute a significant departure from conduct expected of a Soldier.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is, if not already lenient, commensurate with the applicant's overall record of military service.

5.  The applicant's stated acceptance of responsibility for his actions and his undocumented activities in support of military-related efforts in his community are noted.  However, he has provided insufficient evidence that these post-service activities are of such a significant nature as to mitigate his history of poor military service, thereby warranting an upgrade of discharge.

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 this requirement.

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)                                         AR20080016477



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ABCMR Record of Proceedings (cont)                                         AR20080016477



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