IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018919 


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 a fully honorable discharge and that his reason for discharge, separation code and Reenlistment (RE) Code be change to reflect that he was discharged for the convenience of the government with a separation code of "JKM" and a RE Code of "1".

2.  The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident over 15 months of service with no other adverse actions.  He goes on to state that he is seeking medical benefits and needs his discharge upgraded to obtain those benefits.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) and a one-page handwritten letter explaining 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 was born on 22 March 1966 and enlisted in the Regular Army with a moral waiver on 24 February 1988, for a period of 4 years and training as an armor crewman.  He completed his one-station unit training (OSUT) at Fort Knox, Kentucky and was transferred to Fort Carson, Colorado for assignment to an armor company.  

3.  On 8 and 12 August 1988, the applicant was counseled on his failure to go to his appointed place of duty.

4.  On 27 October 1988, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from his first sergeant.  His punishment consisted of a reduction to the pay grade of E-2 and extra duty for 14 days.

5.  On 21 and 23 October and 7 November 1988, he was again counseled on his failure to go to his appointed place of duty.

6.  On 27 February 1989, he was counseled for his poor attitude and lack of respect.

7.  On 21 March 1989, NJP was imposed against him for the wrongful use and possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-1.

8.  On 12 April 1989, the applicant's commander initiated action to bar the applicant from reenlistment based on his use of a controlled substance.  The applicant elected not to submit a statement in his own behalf and the battalion commander approved the local bar to reenlistment on 13 April 1989.  The applicant elected not to appeal the bar.

9.  On 19 April 1989, the applicant underwent a mental status evaluation and was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right.  He was cleared for any administrative action deemed appropriate by the chain of command.

10.  On 3 May 1989, the applicant's commander informed him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He cited the applicant's disciplinary record and records of counseling as the basis for his recommendation. 
11.  On 8 May 1989, after consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

12.  The appropriate authority approved the recommendation for discharge on 19 May 1989 and directed that he be furnished a general discharge certificate.

13.  Accordingly, he was discharged under honorable conditions on 31 May 1989 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct - pattern of misconduct.  He was issued a separation code of "JKM" and RE Codes of "3/3C".  He had served 1 year, 3 months and 8 days of total active service.

14.  There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

15.  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.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7b, also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.





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.  Likewise, his separation code and RE Code are appropriate for the discharge he received and there is no basis for a change of either of those codes.

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.




      _______ _  XXX _______   ___
               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)                                         AR20080018919





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ABCMR Record of Proceedings (cont)                                         AR20080018919



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