IN THE CASE OF:	  

		BOARD DATE:	      14 APRIL 2009

		DOCKET NUMBER:  AR20080019302 


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, under other than honorable conditions, discharge be upgraded to honorable.

2.  The applicant states that he spent less than 2 years in the Army due to the Army's failure to honor its promise and send him to Officer Candidate School (OCS).  He maintains that because of his discharge, he is not entitled to Veterans Benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 4187 (Personnel Action).

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 and entered active duty on 23 May 1985.  He was trained in and awarded military occupational specialty 76Y (Supply Specialist).

3.  The applicant's enlistment contract shows that he entered the Army in the rank/grade of private first class/E-3 based on his college diploma.  He enlisted for the U.S. Army Training of Choice and the Army College Fund enlistment option.  The applicant signed his enlistment contract with the understanding that the statements contained on his enlistment contract constituted all promises concerning his enlistment.  The applicant's enlistment contract does not show OCS as one of his enlistment options.

4.  The DA Form 4187 shows that on 5 September 1985 the applicant was administered the Technical Managerial Leadership Test for OCS.

5.  On 25 September 1985, the applicant was promoted to the rank of specialist/
E-4.

6.  On 14 August 1986, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 15 August 1986 to 18 August 1986.  His punishment consisted of reduction to the grade of E-3, forfeiture of $173.00 for 1 month, 14 days of restriction, and 14 days of extra duty.

7.  On 14 February 1987, the applicant was apprehended by civil authorities and charged with counterfeiting.

8.  On 24 February 1987, the applicant underwent a mental status evaluation in which he was found to be psychiatrically cleared for any administrative action deemed appropriate by the command.

9.  On 25 February 1987, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administration Separations), chapter 14, paragraph 14-12b, for patterns of misconduct consisting of discreditable involvement with civil and military authorities.

10.  On 26 February 1987, the applicant acknowledged receipt of the discharge action.  He indicated that he did not desire to consult with counsel, submit statements in his behalf, or desire a hearing before an administrative board.

11.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

12.  On 26 February 1987, the Commander, 3d Battalion, 70th Armor, Fort Polk, Louisiana, recommended approval of the applicant’s discharge with the issuance of a General Discharge Certificate.

13.  On 26 February 1987, the Commander, 2d Brigade, 5th Infantry Division (Mechanized), Fort Polk, Louisiana, approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b.  He directed that the applicant be furnished a General Discharge Certificate.

14.  The applicant's DD Form 214 shows that he was discharged under the provisions of Army Regulation 635-200, chapter 14, misconduct, under honorable conditions on 4 March 1987.  The applicant had 1 year, 9 months, and 9 days of total active service.

15.  On 2 June 1990, the applicant appealed to the ADRB to upgrade his discharge.  The ADRB denied his appeal on 25 February 1991 citing that the board determined that he was properly and equitably discharged.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12b states that specific categories of misconduct consist of discreditable involvement with civil or military 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.  Additionally, paragraph 14-3 states that an Under Other than Honorable Conditions Discharge Certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.

17.  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 maintains that the Army's failure to send him to OCS and his subsequent early discharge from the Army caused him to lose his veterans benefits.  There is no evidence that the Army promised the applicant attendance at OCS.  The applicant signed his enlistment contract showing that the Army College Fund and Training of Choice were the only promises made concerning his enlistment.

2.  There is no evidence and the applicant has failed to provide any to show that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  In fact, the applicant makes no comments on his actions that led to his administrative discharge for misconduct.

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 the aforementioned requirement.

4.  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.



      ___________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)                                         AR20080019302



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ABCMR Record of Proceedings (cont)                                         AR20080019302



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