IN THE CASE OF:	  

		BOARD DATE:	        30 December 2008

		DOCKET NUMBER:  AR20080016959 


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 he never misconducted himself.  He also states he is sure he paid into the GI Bill when he was in the Washington Army National Guard (WAARNG).

3.  The applicant provides no additional documents with 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 states he is sure he paid into the GI Bill when he was in the WAARNG.  However, he does not explain the relevance of his statement to his request for discharge upgrade.  Since he did not provide any explanation of his statement, this issue will not be further discussed in these proceedings.

3.  The applicant was born on 11 December 1965 and enlisted in the WAARNG on 31 July 1986.  He completed his training as a motor transport operator and remained assigned to the WAARNG until he enlisted in the Regular Army on 3 September 1987 for a period of 3 years and training as a medical specialist.

4.  He was transferred to Fort Sam Houston, Texas to undergo his advanced individual training (AIT) as a medical specialist in military occupational specialty (MOS) 91A.  He failed to complete the course and was recycled into another AIT class and was again academically dropped from the 91A course.  He was subsequently transferred to Aberdeen Proving Ground, Maryland to undergo AIT as a wheel vehicle repairer in MOS 63W.

5.  He completed his AIT as a 63W and was transferred to Kitzingen, Germany on 25 July 1988.  He was advanced to the pay grade of E-3 on 1 September 1988.

6.  On 14 June 1989, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 6 months), and extra duty and restriction.  On 21 June 1989, the suspended portion of his punishment pertaining to a forfeiture of pay was vacated.

7.  On 14 July 1989, NJP was imposed against the applicant for breaking restriction on 15 June 1989.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty and restriction.

8.  On 2 October 1989, a notification was dispatched through the applicant's commander to the applicant informing him that his check cashing privileges had been suspended because it was his fourth offense and he had written six or more dishonored checks.

9.  On 6 December 1989, the applicant's commander notified him that he was initiating action to separate him from the service for a pattern of misconduct.  He cited as the basis for his recommendation the applicant's history of poor work performance, failure to maintain his room and personal appearance, not being 

prepared for inspection, uttering worthless checks, repeated failure to repair, disobeying noncommissioned officers, breaking restriction, and a demonstrated lack of integrity and responsibility.  He included copies of 30 counseling statements as enclosures to the recommendation.

10.  After consulting with counsel the applicant indicated that he intended to submit a statement in his own behalf.  However, he failed to do so by 15 December 1989, when the commander initiated the recommendation for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct - pattern of misconduct.

11.  The appropriate authority approved the recommendation for discharge on 3 January 1990 and directed that he be furnished a general, under honorable conditions discharge.

12.  Accordingly, he was transferred to Fort Dix, New Jersey where he was discharged on 12 January 1990 under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He had served 2 years, 4 months, and 10 days of active service during his current enlistment.

13.  On 27 March 1998, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 5 August 1998, after reviewing the applicant's records and the facts and circumstances surrounding his discharge, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

14.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  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.  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.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant's contention that he had no misconduct while on active duty has been noted and found to lack merit.  Accordingly, his service is not sufficiently mitigating to warrant a fully honorable discharge when compared to his repeated acts of misconduct and his otherwise undistinguished record of service. 

4.  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)                                         AR20080016959



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ABCMR Record of Proceedings (cont)                                         AR20080016959



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