IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080017524 


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 states that he believes he was in shock after the war and that he was given an Article 15 with no counseling.  He adds that he had no problems during his military service until he arrived at Fort Drum, New York, where, despite being the first Soldier coming from Germany with a combat patch, his biased platoon leader hated him and never afforded him any counseling.  He concludes that he did not know that there was a process to request an upgrade.

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 3 years on 6 February 1990.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16S (Man Portable Air Defense System (MANPADs) Crewmember).  The highest grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant’s records also show he served in Southwest Asia from 18 September 1990 to 28 March 1991.

4.  The applicant’s records further show he was awarded the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon, the Southwest Asia Service Medal with three bronze service stars, the Kuwait Liberation Medal, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements or significant acts during his military service.

5.  The applicant's records reveal an extensive history of counseling for various instances of indiscipline including failure to repair and disrespect on miscellaneous dates during his period of service at Fort Drum, New York.  Furthermore, on 25 November 1991, the applicant was counseled with respect to his failure to attend the Primary Leadership Development Course (PLDC).

6.  On 27 November 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty, on or about 22 November 1991.  His punishment consisted of 14 days of extra duty and 14 days of restriction.  He appealed his punishment on 27 November 1991; however, on 3 December 1991, the next superior authority denied his appeal.

7.  On 9 January 1992, the applicant appeared in court at Pamelia County, New York, for the civilian charge of driving while intoxicated (DWI).  He was convicted and fined $385.00.  

8.  On 27 February 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being disrespectful in language toward a superior noncommissioned officer (NCO) on or about 27 January 1992, and failing to go at the prescribed time to his appointed place of duty, on or about 11 February 1992.  His punishment consisted of forfeiture of $215.00 pay, 14 days of extra duty, and 14 days of restriction.  



9.  On 29 February 1992, the applicant departed his unit at Fort Drum, New York, in an absent without leave (AWOL) status.  He returned to military control on 11 March 1992.

10.  On 23 March 1992, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his two instances of nonjudicial punishment, civilian DWI conviction, and history of counseling.

11.  On 3 April 1992, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 29 February 1992 through on or about 11 March 1992.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $381.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction.  

12.  On 23 April 1992, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct, commission of a serious offense.  Specifically, the immediate commander cited the applicant’s AWOL, lack of respect to his leaders, and apathetic attitude.  

13.  On 23 April 1992, 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 further indicated that he could encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him and that if he received a character of service of less than honorable, he could petition the Army Discharge Review Board (ADRB) and/or the ABCMR for an upgrade.  He also elected not to submit a statement on his own behalf.  

14.  On 4 May 1992, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct.  Specifically, the immediate commander remarked that the applicant had one instance of AWOL, a bar to reenlistment, and a civil conviction.  The immediate commander further recommended a general discharge.  

15.  On 5 May 1992, the applicant’s intermediate commander recommended the applicant be separated from the Army for misconduct, commission of a serious offense and further recommended he receive a general discharge with an under honorable conditions characterization of service.
16.  On 6 May 1992, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of AR 635-200 by reason of misconduct, commission of a serious offense, and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 15 May 1992.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms he completed a total of 2 years, 3 months, and 10 days of creditable military service.

17.  There is no indication in the applicant’s records that he applied to the ADRB for an upgrade of his discharge within that Board’s 15 year statute of limitations.

18.  AR 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.

19.  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.  

DISCUSSION AND CONCLUSIONS:

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

2.  There is no evidence in the applicant's record, and the applicant did not provide substantiating evidence, that shows he suffered from shock before, during, or subsequent to his service in the war (presumably Southwest Asia).  Furthermore, there is no evidence that the applicant addressed such alleged condition with his chain of command and/or support channels or that his indiscipline was a result of this alleged shock.
3.  Contrary to the applicant’s contention that he did not know there was a process to request a discharge upgrade, the evidence of record shows that on 23 April 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He indicated that he understood that if he received a character of service of less than honorable, he could petition the ADRBB and/or the ABCMR for an upgrade of his discharge.  Furthermore, contrary to his contention that he was not counseled, the applicant's records reveal an extensive history of counseling for various infractions ranging from minor infractions of failure to repair and disrespecting NCOs and officers to the more serious of being AWOL.

4.  The evidence of record shows that 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.  The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  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)                                         AR20080017524



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ABCMR Record of Proceedings (cont)                                         AR20080017524



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