IN THE CASE OF:	  

		BOARD DATE:	       18 February 2009

		DOCKET NUMBER:  AR20080016601 


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 general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that he was having marital problems and chemical dependency problems at the time of his discharge and was not allowed any form of treatment or counseling for these issues which he believes would have been helpful and possibly could have saved his career.  He adds that since his discharge, he had received counseling and treatment and discovered that he had inherited the disease of addiction.  He has now been sober for over 10 years and has made a positive impact on his family and community and he now has an excellent chance to further his career in the welding industry but needs his discharge upgraded.

3.  The applicant did not provide any supporting documentary evidence in support of her 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 he enlisted in the Regular Army for a period of 4 years on 28 December 1986.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 44B (Metal Worker).  His records also show he extended his reenlistment by a period of 8 months on 29 December 1986.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Grenade Bar, and the Driver and Mechanic Badge with Driver-W Bar.  His records do not show any achievements or commendations during his military service.

4.  On 20 March 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of the Military Justice (UCMJ) for wrongfully using marijuana on or about 3 January 1989 and for breaking restriction on or about 22 February 1989.  His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $429.00 pay per month for 2 months, 30 days of restriction, and 30 days of extra duty.  

5.  On 17 April 1989, the applicant again accepted NPJ under the provisions of Article 15 of the UCMJ for breaking restriction on or about 19 March 1989.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $391.00 pay per month for 2 months, 30 days of restriction, and 30 days of extra duty.  

6.  The applicant’s records contain several notices and notifications of dishonored checks made to various vendors and businesses on miscellaneous dates in 1988.  

7.  The applicant’s records contain 12 counseling statements by various members of the applicant’s chain of command throughout 1988 and 1989 for various infractions to include failing to report, missing formations, failing to follow orders, writing bad checks, and driving without a driver’s license.

8.  On 12 May 1989, 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 635-200 (Personnel Separations – Enlisted Personnel), for a pattern of misconduct.  The immediate commander remarked that the applicant had displayed a pattern of misconduct consisting of breaking restriction and disrespect and abuse of illegal drugs (marijuana).  The commander added that the applicant had been counseled and was given ample time and opportunity to cooperate with his chain of command to correct his problems, but there was no progress and the applicant seemed to have no desire to improve.

9.  On 17 May 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected not to submit a statement on his own behalf.

10.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 

11.  On 18 May 1989, 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 resulting in numerous counseling statements, letters of concern, letters of delinquent accounts, and NJP.

12.  On 19 May 1989, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an under honorable conditions (general) character of service "OTHER THAN HONORABLE."

13.  On 23 May 1989, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished an under honorable conditions (general) characterization of service "OTHER THAN HONORABLE.".  Accordingly, he was discharged on 14 June 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his service was characterized general, under honorable conditions.  This form further confirms he completed a total of 2 years, 5 months, and 17 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 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the version in effect at the time 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.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

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

2.  Contrary to the applicant's contention that he was not provided with any counseling, the evidence of record shows he had a history of disciplinary problems, ranging from failure to report, missing formation, and writing bad checks, to the more serious offenses of using drugs.  He was counseled on 12 different occasions and was provided with multiple opportunities to correct his deficiencies; however, he showed no progress and seemed to have no desire to improve.  Accordingly, his immediate commander initiated separation action against him.

3.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military 
personnel.  His record of service shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on two separate occasions for serious offenses.  

4.  All requirements of law and regulation were met and the rights of the applicant were 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.


															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)                                         AR20080016601



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ABCMR Record of Proceedings (cont)                                         AR20080016601



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