DOCKET NUMBER:  AR20090000492 


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 upgrade of his general, under honorable conditions  discharge to an honorable discharge. 

2.  The applicant states that it has been 5 years since his discharge and he would like to get his discharge upgraded so he can get a better job.  He also contends that he has already received an associate's degree and is working on his bachelor's degree. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 20 November 2008, in support of this 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 military records show that he enlisted in the Regular Army (RA) on 7 March 2003.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).  He then departed for a tour of duty in Germany in August 2003.

3.  On 1 December 2003, a mental status evaluation was conducted on the applicant, and he was psychiatrically cleared for any administrative action deemed appropriate by his command.  He was also given a physical examination on 7 January 2004 and found medically qualified for separation.

4.  On 24 February 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 1 November 2003 and remaining so absent until on or about 17 November 2003; failing to go at the time prescribed to his appointed place of duty on or about 24 November 2003; making an official statement on or about 15 December 2003 with intent to deceive, which statement was totally false and then known by him to be so false; and willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on or about 15 December 2003.  His punishment consisted of a reduction in rank/grade from private (PV2)/E-2 to private (PV1)/E-1, forfeiture of $596.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.  The applicant did not appeal this punishment or submit matters in mitigation.

5.  On or about 26 February 2004, the applicant's commanding officer informed him that she was initiating action to separate him under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) because he had shown unsatisfactory performance in his military duties and had failed to reform after receiving NJP and four counseling statements.  The applicant was also advised of his rights and he acknowledged receipt of this notification on 26 February 2004.

6.  Additionally, on or about 26 February 2004, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf and waived counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.  

7.  On 2 March 2004, the proper authority approved the applicant’s elimination under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance and determined that he would not be transferred to the Individual Ready Reserve.  He also directed that the applicant be furnished a General Discharge Certificate.  On 11 March 2004, the applicant was discharged accordingly.

8.  In a letter, dated 2 September 2005, the Army Discharge Review Board informed the applicant that his request for a change in the character and/or reason for his discharge was denied.

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

10.  Army Regulation 635-200, paragraph 3-7a provides, in pertinent part, 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.  

11.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that it has been 5 years since his discharge was noted, as was his desire for a discharge upgrade so he can get a better job.  However, the ABCMR does not upgrade discharges merely on the passage of time nor does it upgrade discharges simply to improve a veteran's job prospects.  

3.  The applicant's contention regarding his post-service education was also noted.  However, while the applicant's attainment of an associate's degree and pursuit of a bachelor's degree would be commendable, it does not mitigate his conduct while on active duty or warrant special recognition.

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.

5.  The evidence of record clearly shows that the applicant was repeatedly counseled for multiple deficiencies and that he accepted NJP under Article 15 of the UCMJ for multiple offenses of the UCMJ.  Given these instances of misconduct and inappropriate behavior in just the first few months of his permanent duty assignment, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

6.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20090000492



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ABCMR Record of Proceedings (cont)                                         AR20090000492



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