IN THE CASE OF:
BOARD DATE: 2 April 2009
DOCKET NUMBER: AR20080019031
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 fully honorable.
2. The applicant states in a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) that due to some poor decisions and youth, he would like to reverse his discharge from a general discharge to an honorable as an attempt to correct wrongdoing on his behalf.
3. The applicant does not provide any additional documents in support of his request.
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 applicants 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 applicants 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 military records show that he enlisted in the Regular Army on 3 February 1989 at age 18 and was awarded the military occupational specialty of light wheel vehicle mechanic.
3. On 19 December 1989, the applicant was notified that he was being considered for separation due to unsatisfactory performance and he was advised of his rights in conjunction with that recommendation. In the applicant's response to that notification, he acknowledged he understood the effects of being given a discharge that was not fully honorable.
4. On 19 December 1989, the applicant's commander forwarded a recommendation to discharge the applicant due to unsatisfactory performance. In that recommendation, his commander stated that the applicant had been counseled for failure to repair, when his off post pass privilege was revoked, when he was barred from reenlisting, for disregard for authority, for speeding and operating a vehicle which was not registered, for disobeying a lawful order, and for losing his meal card. His commander also stated that the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, twice, once for being a public nuisance and the second for drinking under age and being drunk on duty.
5. The applicant's commander's recommendation was approved by the appropriate authority. Accordingly, the applicant was issued a general discharge for Unsatisfactory Performance on 16 January 1990. He had completed a total of 11 months and 14 days of active service.
6. Army Regulation 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.
7. 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 members 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's repeated disregard for military authority, as evidenced by his numerous counselings and acceptance of NJP on two occasions, certainly warranted separation due to unsatisfactory performance.
2. Documents contained in the applicant's records confirm that the applicant's rights were protected throughout the discharge process.
3. The applicant was 18 years of age when he enlisted. While he was certainly young, he was no younger than most other Soldiers who enlisted at the time and served their enlistments with full honor.
4. While it is accepted that the applicant made poor choices while he was on active duty, this does not establish grounds to upgrade a properly issued discharge.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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