IN THE CASE OF:	

		BOARD DATE:	      24 March 2009

		DOCKET NUMBER:  AR20080018136 


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, under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he was young and made a lot of mistakes.  Since his separation, he has completed technical training and is looking to further his education.  The job market is tough right now.  He just wants a chance to excel in his field of work without limitations.  He has a family now and wants to provide for them.  Changing his discharge to honorable will open up doors for him to do so.

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.  On 13 November 2000, the applicant enlisted in the Regular Army.   He was 18 years and 9 months of age at the time.  He completed his initial training and was awarded military occupational specialty (MOS) 31U (Signal Support Systems Specialist).

3.  On or about 16 September 2001, the applicant was assigned to the 2nd Battalion, 5th Infantry Regiment, 3rd Infantry Brigade, located at Schofield Barracks, Hawaii.

4.  On 14 August 2002, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order.  The punishment included reduction to grade E2 (suspended), a forfeiture of $289.00 pay per month for 1 month (suspended), and 14 days restriction and extra duty.

5.  On 10 January 2003, the applicant accepted NJP for disobeying a lawful order.  The punishment included reduction to pay grade E-1 and forfeiture of $269.00 pay per month for 1 month.

6.   On or about 11 June 2003, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for a pattern of misconduct.   The commander's reasons for this action included the applicant's twice disobeying lawful orders and his unlawful entry and theft of $800.00 in currency.  

7.  On 11 June 2003, the applicant declined the opportunity to consult with counsel concerning his rights.  He elected not to make a statement in his own behalf.

8.  On 12 June 2003, the applicant accepted NJP for unlawfully entering the room of another Soldier and stealing about $800.00 in currency.  The punishment included forfeiture of $575.00 pay per month for 2 months and 45 days extra duty.

9.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.  He further directed that the applicant would not be transferred to the Individual Ready Reserve.


10.  Accordingly, on 18 July 2003, the applicant was discharged under honorable conditions.  He had completed 2 years, 8 months, and 6 days of creditable active service.

11.  On 6 August 2004, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB determined that he had been properly and equitably discharged.

12.  Army Regulation 635-200 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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

13.  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 contends that he was young and made a lot of mistakes.  Since his discharge he has changed, went to school, and is trying to provide for his family.

2.  The record shows three offenses in less than a year.  This is clearly a pattern of misconduct.  

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.



5.  The applicant implies that his young age was the reason for his making mistakes.  At the time of his first NJP he was more than 20 years of age.  

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

7.  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)                                         AR20080018136



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ABCMR Record of Proceedings (cont)                                         AR20080018136



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