IN THE CASE OF:	  

		BOARD DATE:	       12 March 2009

		DOCKET NUMBER:  AR20080019881 


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, in effect, upgrade of the character of service of his discharge.

2.  The applicant states, in effect, after returning from Germany in 1986 he was married at a young age and had a lot of problems with his family; however, he did not seek help for his problems.  He also states that before he reenlisted in the Army, he never had any trouble, was always trying to improve, and excelled in his duties.  He adds that after he reenlisted, his problems began to get worse.

	a.  Prior to his separation, the applicant states he contacted the Command Sergeant Major (CSM) of Headquarters Company in 1st Cavalry.  The CSM contacted his First Sergeant who, in turn, called him to his office and said, "I don’t know what you told the CSM, but you can go."  The applicant states, "I ask him did I have to sign any paper, he said they’ll be taken care of [sic]."

	b.  The applicant states he left Fort Hood, Texas, on a bus that same day (in May 1988) and never knew what kind of discharge he was given.  He also states that he never tried to find out up until now.

	c.  The applicant states he has a new family and is making a new start in his life.  He also states that he would love to go back into the military to correct the earlier mistakes he made and he asks for forgiveness.

3.  The applicant provides a self-authored statement on page 2 of a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 10 October 2008.

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 military personnel records show he enlisted in the U.S. Army Reserve for a period of 6 years on 31 October 1983 in the Delayed Entry Program.  He then enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 5 September 1984.  The applicant’s records show his date of birth is __ December 1965.  Upon completion of basic combat and advanced individual training, the applicant was awarded military occupational specialty 19K (M1 Armor Crewman).  He was assigned overseas and served in the U.S. Army Europe in Germany from 10 January 1985 to 3 October 1986.

3.  On 28 August 1987, the applicant reenlisted in the RA for a period of 5 years.

4.  The applicant's military personnel records contain a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), dated 20 August 1987.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for absenting himself from his place of duty without authority, to wit:  missing formation, on or about 11 August 1987 at Fort Hood, Texas, in violation of Article 86, UCMJ; and for absenting himself from his place of duty without authority, to wit:  missing formation, on or about 14 August 1987 at Fort Hood, Texas, in violation of Article 86, UCMJ.  The punishment imposed was reduction to the grade of E-3 (suspended for 90 days), forfeiture of $196.00 (suspended for 90 days), 14 days of restriction, and 14 days of extra duty.

5.  The applicant’s military personnel records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 2 November 1987.  This document shows that the company commander documented his recommendation that the applicant be barred from reenlistment in the U.S. Army.  The reason cited by the commander was based on a general officer letter of reprimand issued to the applicant on 13 November 1987 for driving under the influence of an intoxicating liquor on 16 October 1987.  The applicant indicated that he did not desire to submit a statement in his own behalf in response to the commander’s recommendation that the applicant be barred from reenlistment.  On 3 December 1987, the Commander, 1st Battalion, 5th Cavalry, 1st Cavalry Division, Fort Hood, Texas, approved the bar to reenlistment and notified the applicant of his right to appeal imposition of the bar to reenlistment.  There is no evidence that the applicant submitted an appeal to the bar to reenlistment.

6.  The applicant's military personnel records contain a DA Form 2627 (date illegible) that shows nonjudicial punishment was imposed by the battalion commander against the applicant for absenting himself without authority from his unit, to wit:  B Company (Task Force), 1st Battalion, 5th Cavalry, 1st Cavalry Division, on or about 14 December 1987 at Fort Hood, Texas, and did remain so absent until 21 December 1987, in violation of Article 86, UCMJ.  The punishment imposed was reduction to the grade of E-2, 45 days of restriction, and 45 days of extra duty.

7.  On 18 March 1988, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct.  The commander stated that he was recommending the applicant receive a characterization of service of under other than honorable conditions.  The applicant was also advised of his rights.

8.  On 19 March 1988, the applicant requested and consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers, waived personal appearance before an administrative separation board, waived consulting counsel and representation by counsel, and elected not to submit statements in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  He further acknowledged that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life.  He indicated that he understood he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, that an act of consideration by either board did not imply that his discharge will be upgraded.  The applicant acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant and the commissioned officer (serving in the Judge Advocate General Corps) who advised the applicant regarding the contemplated separation each affixed their signature to the document.

9.  On 18 March 1988, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be separated from the U.S. Army prior to his expiration term of service (ETS) under the provisions of Army Regulation 
635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct.  The commander also stated the applicant did not have the potential for useful service under conditions of full mobilization.  The company commander recommended approval of the separation action and that the applicant’s term of service be characterized as under other than honorable conditions.

10.  On 29 March 1988, the battalion commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 
14-12b, based on a pattern of misconduct.  He also recommended the applicant not be considered for the Inactive Ready Reserve and that the applicant’s service be characterized as under other than honorable conditions.

11.  On an unspecified date, the brigade commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army prior to ETS under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct.  He also indicated that the applicant’s performance warrants a general (under honorable conditions) discharge.

12.  On 2 May 1988, the major general serving as the general court-martial convening authority and the authorized separation authority in the applicant’s case approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct.  The separation authority waived further counseling and the rehabilitative requirements of Army Regulation 635-200, paragraph 1-18, and directed the applicant be discharged under other than honorable conditions.  The separation authority also directed the applicant be reduced to the lowest enlisted rank.  Accordingly, the applicant was discharged on 5 May 1988.
13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, based on a pattern of misconduct with the separation code "JKM."  At the time of his discharge the applicant had completed 3 years, 7 months, and 5 days of net active service during the period of service under review.  Item 21 (Signature of Member Being Separated) shows the applicant placed his signature on the document.

14.  The applicant's military personnel records are absent any evidence related to a request from the applicant for ordinary leave, emergency leave, compassionate reassignment, or hardship discharge based on family problems.

15.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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

17.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This regulation states, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge, if such is merited by the Soldier's overall record.

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 635-200, paragraph 3-7b, 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 contends, in effect, that his discharge should be upgraded because he was young, had family problems at the time, and was never told the type of discharge he was given.

2.  Records show that the applicant was 18 years of age at the time of his entry on active duty, more than 21 years of age at the time of his acts of misconduct for which nonjudicial punishment was imposed, and 22 years of age when he absented himself without leave from his unit.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant’s records are absent any evidence that he requested ordinary leave, emergency leave, compassionate reassignment, or hardship discharge based on family problems.  In addition, the evidence of record shows at the time of his separation processing, the applicant consulted with legal counsel and, in pertinent part, he elected not to submit statements in his own behalf in which he could have provided mitigating information (e.g., pertaining to family problems) that would have been considered by his chain of command during the separation process.  In view of the foregoing, there is insufficient evidence to support the applicant’s contention that he was experiencing family problems during the period of service under review.

4.  The evidence of record shows that the applicant was notified by his company commander of his intent to initiate separation action to effect the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct and that he recommended the applicant receive a characterization of service of under other than honorable conditions.  The evidence of record also shows that the applicant consulted with legal counsel who advised him of the basis for the contemplated separation action and, in pertinent part, that as the result of issuance of a discharge under other than honorable conditions, the applicant may be ineligible for many or all benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life.  The evidence of record further shows that the applicant signed his DD Form 214 on the date of his discharge indicating he had reviewed the discharge document, including the type of separation and character of service.  Thus, the evidence of record refutes the applicant’s claim that he was never told the type of discharge that he was given.
5.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, based on a pattern of misconduct was proper and equitable and in accordance with the regulations in effect at the time. Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

6.  The applicant’s record of service shows completion of only 3 years, 7 months, and 5 days of his nearly 8-year military commitment and also documents a pattern of misconduct involving missing formation on two occasions for which nonjudicial punishment was imposed, driving under the influence of an intoxicating liquor for which he was issued a general officer letter of reprimand, and being absent without leave from his unit for which nonjudicial punishment was imposed.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

7.  The applicant's comments concerning his desire to start a new life were also carefully considered.  The applicant’s personal commitment to bettering his life and that of his family is commendable.  However, his post-service personal commitment does not warrant an upgrade of his military discharge.

8.  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)                                         AR20080019881



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ABCMR Record of Proceedings (cont)                                         AR20080019881



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