IN THE CASE OF:	  

		BOARD DATE:	  	  27 January 2009

		DOCKET NUMBER:  AR20080017906 


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, in effect, that his general discharge under honorable conditions be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he is a Desert Storm Veteran who put his life up for his country.

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army on 2 February 1989.  He successfully completed basic training and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  

3.  The applicant's record shows he was promoted to specialist four on 1 April 1991, and that this was the highest rank he attained while serving on active duty. It also shows that during his active duty tenure, he received the Army Service Ribbon, the Overseas Service Ribbon, the Good Conduct Medal, the National Defense Service Medal, the Army Achievement Medal, the Southwest Asia Service Medal with two bronze service stars, the Sharpshooter Qualification Badge with Rifle (M-16), and the Army Lapel Button.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  On 22 April 1992, the applicant received nonjudicial punishment (NJP) for wrongful use of amphetamine and methamphetamine between or on or about 
2 February and on or about 2 March 1992.  His imposed punishment was a reduction to pay grade E-3; a forfeiture of $501.00 pay per month for 2 months,  1 month suspended, to be automatically remitted if not vacated before 22 July 1992; and to perform 45 days of extra duty. 

5.  On 27 April 1992, the applicant was informed by his unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-200, Chapter 14-12c for commission of a serious offense, with a discharge under honorable conditions (General).  The reason for the recommended action was the applicant’s NJP for wrongful use of amphetamine and methamphetamine.  

6.  On 28 April 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him and the effect of a waiver of those rights.  Subsequent to this counseling, the applicant elected to waive his rights to a personal appearance before a board of officers.  He also elected not to submit statements in his own behalf.  

7.  On 4 May 1992, the separation authority approved the applicant's discharge and directed the applicant receive a discharge under honorable conditions (General).  On 15 May 1992, the applicant was discharged accordingly.  The 

separation document (DD Form 214) he was issued at the time shows he held the rank of private first class (PFC)/E-3 and that he had completed a total of 
3 years, 3 months and 14 days of creditable active military service.  

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

9.  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’s contention that his character of service should be changed to an HD was carefully considered and found to be without merit. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations in effect at the time.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's record of military service was not sufficiently meritorious for the separation authority to support an HD at the time of his discharge, nor does the evidence support an upgrade at this time.  The applicant’s discharge accurately reflects his overall record of undistinguished service and the narrative reason for separation was and is still appropriate.  

3.  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)                                         AR20080017906



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ABCMR Record of Proceedings (cont)                                         AR20080017906



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