IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090000829 


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 her general discharge be upgraded to an honorable discharge.

2.  The applicant states she has learned how to reenter society and become a productive citizen.  She states she has been out of the military for 17 years and she has matured greatly.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 June 1991 in support of her 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 personnel records show she enlisted in the Regular Army on 14 March 1990 for a period of 3 years.  She completed basic combat training and advanced individual training and was awarded the military occupational specialty 94B (Food Service Specialist).

3.  On 9 August 1990, the applicant was assigned to D Company, 1st Battalion, 501st Aviation Battalion in the Republic of Korea.

4.  On 25 March 1991, the applicant's commander notified her that he was initiating action to discharge her under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) due to her chronic pattern of misconduct and unsuitability for military service.  The commander further notified the applicant he was recommending she receive a general discharge.  

5.  The commander advised the applicant of her right to submit statements in her own behalf, to obtain copies of documents that would be sent to the separation authority supporting her proposed separation, and to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time.  The commander further advised the applicant that she could waive any of these rights in writing and she could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves her discharge.  

6.  The commander advised the applicant that failure to respond to the letter of notification constituted a waiver of her rights.  There was no record of a response received from the applicant.

7.  On 25 March 1991, the applicant's commander recommended her for discharge due to a pattern of misconduct.  The commander stated the applicant had shown a chronic pattern of misconduct and was unsuitable for military service.  He stated she had written over $1,900 of bad checks and had received nonjudicial punishment, one letter of reprimand, and multiple adverse counseling statements.  He stated she had broken restriction on two occasions and failed to be at her appointed place of duty.  The commander recommended that her service be characterized as under honorable conditions.  The commander also recommended waiver of a rehabilitative transfer.

8.  On 14 June 1991, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.
9.  The appropriate authority approved the recommendation for discharge due to a pattern of misconduct, waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under honorable conditions.

10.  On 17 June 1991, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  She completed 1 year, 3 months, and 4 days active service that was characterized as under honorable conditions. 

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 27 January 1996, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

12.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  
Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

13.  Army Regulation 635-200 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.  Whenever there is doubt, it is to be resolved in favor of the individual.



DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

2.  The applicant's continued pattern of misconduct, especially in a foreign country, shows her service generally did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  The applicant's post service achievements and conduct are noted.  However, post service achievements and conduct alone are not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

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 that requirement.

5.  Based on all of the foregoing, there is insufficient basis to upgrade the applicant's 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)                                         AR20090000829





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000829



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1