IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090000598 


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, that his general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, while home after being notified of his grandmother's death by the Red Cross, he received permission from his unit to stay home and attend to the affairs of his grandmother.  He further states that since his discharge from the Army, he enlisted in the Army National Guard (ARNG) and has completed 8 years of honorable service.

3.  The applicant provides a copy of an ARNG HD certificate 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 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 shows that after having prior Reserve Component (RC) service, he enlisted in the Regular Army (RA) and entered active duty on 1 March 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in
Item 18 (Appointments and Reductions), that he attained the rank/grade of specialist (SPC)/E-4 on 1 August 1991, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank/grade of private first class (PFC)/E-3 on 5 February 1992 and to the rank of private (PV1)/E-1 on 3 May 1993.

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The record does reveal a disciplinary history that includes the applicant being apprehended by military police for disorderly conduct and operating a motor vehicle without a valid driver's license, which is documented in a DA Form 3975 (Military Police Report), dated 
5 November 1991.

5.  The applicant’s record also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offense(s) indicated:  5 February 1992, for twice disobeying a lawful order and for treating his noncommissioned officer with contempt; 19 February 1992, for violating a lawful general regulation by failing to secure his wall locker in which a theft occurred; and 26 January 1993, for being absent without leave (AWOL) from 29 December 1992 to 14 January 1993.

6.  The applicant's record also shows that he was formally counseled by members of his chain of command on twenty-two separate occasions during the period between 6 December 1991 and 20 April 1993, for a myriad of disciplinary infractions that included missing formations on multiple occasions, disobeying lawful orders, misconduct, failure to repair on multiple occasions, insubordination, indebtedness, wearing an improper uniform, traffic violations, and breaking restriction.  He was also counseled regarding the registration of his vehicle on post, maintaining his personal living area, and regarding NJP actions and possible elimination.  

7.  On 25 May 1993, his unit commander notified the applicant that it was his intent to initiate action to separate the applicant under the provisions of paragraph 14-12b of Army Regulation 635-200, for a pattern of misconduct.  The 
unit commander stated that the basis for the contemplated separation action was the applicant’s failure to obey lawful orders, AWOL offense, failure to repair, and failure to be in correct uniform.

8.  On 27 May 1993, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action and its effects, and of the rights available to him, he completed an election of rights.  In his election, he acknowledged that because he had less than 6 years service, he was not entitled to have his case heard by an administrative separation board unless he was being considered for an under other than honorable conditions (UOTHC) discharge.  The applicant also elected to submit a statement in his own behalf.  In his statement, he indicated he should be given an HD.  He acknowledged that he had problems; however, he stated he should not be punished for the rest of his life because of them.  He further indicated that he was going through some bad times and had no one else to turn to following the death of his grandmother.

9.  On 3 June 1993, the separation authority approved the applicant's separation under the provisions of chapter 14, Army Regulation 635-200, for misconduct and directed the applicant receive a GD.  On 21 June 1993, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge shows he completed a total of 3 years, 3 months, and 6 days of creditable active military service.  

10.  The applicant provides an HD certificate which shows he was honorably discharged from the Texas ARNG on 12 August 2001.

11.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  The regulation specifies 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.  The separation authority may issue an HD or GD if warranted by the overall record of service; however, a UOTHC discharge is normally considered appropriate for members separated under these provisions of the regulation.  

13.  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's contention that his GD should be upgraded to an HD because his grandmother passed away while he was serving in the Army and because of his subsequent honorable service in the ARNG was carefully considered.  However, these factors are not sufficiently mitigating to support an upgrade of his discharge at this time.  

2.  The applicant's post-service honorable ARNG service reflected in the discharge certificate provided by the applicant is noteworthy; however, it only characterizes the service covering the period for which it was issued and is not sufficiently mitigating to support the upgrade action now being considered.  Further, notwithstanding his assertions, there is no evidence that his AWOL period was the result of a misunderstanding by his unit.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant's overall record of service was considered and resulted in the issuance of a GD instead of the UOTHC discharge that is normally appropriate for members separated for misconduct.  The applicant's extensive disciplinary history clearly diminished the overall qualify of his service below that meriting a fully honorable discharge, and the GD he received accurately reflected the overall quality of his service.  The applicant's record did not support the issuance of an HD by the separation authority at the time of his discharge, nor does it support an upgrade to an HD at this late date.  

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 the aforementioned 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)                                         AR20090000598



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ABCMR Record of Proceedings (cont)                                         AR20090000598



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