IN THE CASE OF:	  

		BOARD DATE:	       18 February 2009

		DOCKET NUMBER:  AR20080018562 


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 discharge to an honorable discharge.

2.  The applicant states that there is no error in his discharge.  He was a great Soldier and served 3 honorable years before he reenlisted; however, he and his wife had problems at the time.  It has now been over 20 years and he is applying for a job at the New York City (NYC) Department of Corrections and needs his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 August 1988; a copy of his Certificate of Reenlistment, dated 17 December 1987; a listing of items need by the NYC Department of Corrections; a self-authored letter, dated 23 October 2008; and three character reference statements, 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 he enlisted in the Regular Army for a period of 3 years on 1 February 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was honorably discharged on 16 December 1987 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 17 December 1987.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he served in Germany from 23 May 1985 to 11 December 1986.  His awards and decorations include the Army Service Ribbon, the Army Achievement Medal, the Overseas Service Ribbon, the Good Conduct Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 11 May 1987, for stealing a Timex watch at the Fort Knox, Kentucky, Post Exchange (PX), on or about 4 April 1987.  His punishment consisted of reduction from SP4/E-4 to private first class (PFC)/E-3 and forfeiture of $100.00 pay (suspended until 1 August 1987);  

	b.  on 14 March 1988, for violating a lawful general regulation by wrongfully possessing an unregistered handgun.  His punishment consisted of reduction to PFC/E-3, forfeiture of $300.00 pay for 2 months (suspended until 14 September 1988), and 45 days of extra duty.  However, the suspension of the punishment of forfeiture of $300.00 pay for 2 months was vacated on 22 June 1988 as a result of the applicant being absent without leave (AWOL) during the period on or about 23 May 1988 through on or about 9 June 1988; and

	c.  on 28 June 1988, for being AWOL during the period on or about 23 May 1988 through on or about 9 June 1988;   His punishment consisted of forfeiture of reduction to private (PV2)/E-2, forfeiture of $175.00 pay, and 14 days of extra duty.



5.  The applicant’s records reveal multiple performance, personal, and disciplinary counseling statements, on various dates that included failure to follow instructions and failure to go to his appointed place of duty at the prescribed time; missing formation, and failure to repair.

6.  On an unknown date in 1988, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his previous incidents of larceny, possession of unregistered gun, AWOL, two instances of traffic citations (speed and failure to obey traffic control device), and two instances of domestic disturbances.  The applicant was furnished with a copy of this bar; however, he elected not to submit statements on his own behalf.

7.  On 28 July 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations), for unsatisfactory performance.  The immediate commander recommended a General Discharge Certificate.   

8.  On 28 July 1988, the applicant acknowledged receipt of the commander's intent to separate him and, on 3 August 1988 he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, 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 waived consideration of his case by a an administrative separation board, waived personal appearance before an administrative separation board, and declined making a statement in his own behalf.  The applicant further acknowledged that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

9.  On 3 August 1988, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200 because of unsatisfactory performance.  The immediate commander cited the applicant’s previous incidents of larceny, possession of unregistered gun, AWOL, two instances of traffic citations (speed and failure to obey traffic control device), and two instances of domestic disturbances.  He further requested the rehabilitative requirements be waived. 

10.  On an unknown date in August 1988, the separation authority approved the applicant’s discharge, under the provisions of AR 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 12 August 1988.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 3 years, 5 months, and 26 days of creditable military service and 16 day of lost time.

11.  The applicant submitted the following statements in support of his request:

	a.  In his self-authored statement, dated 23 October 2008, the applicant states that having an honorable discharge is one of the main requirements for the NYC Department of Corrections job he is applying for; 

	b.  In a statement, dated 15 October 2008, the Chief Station Officer, New York City Transit, states that she has known the applicant throughout his entire life and that she finds him dependable, honest, hard working, and has a strong sense of morals; 

	c.  In a statement, dated 15 October 2008, a school safety officer states that she has known the applicant to be a law-abiding citizen and family man for many years; and

	d.  In an undated statement, the applicant’s fiancée comments on his honesty, dependability, mild manners, and trustworthiness. 

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

14.  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.  The evidence of record shows that the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant is right; there is no error in his discharge. 

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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)                                         AR20080018562





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ABCMR Record of Proceedings (cont)                                         AR20080018562



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