IN THE CASE OF:	

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090000837 


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 discharge under honorable conditions be upgraded to an honorable discharge.  

2.  The applicant states, in effect, that at the time he was young and irresponsible.  He also states that now he is a grown, responsible family man who feels the past.  He believes we should learn from the past and move on.

3.  The applicant provides no additional documentation in support of his 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), in pay grade E-1, on 21 March 1985, for 3 years.  On the date of enlistment in the RA, the applicant was 19 years and 8 months of age.  He completed basic and advanced individual training and was awarded military occupational specialty 63N, Tank System Mechanic.  He was advanced to pay grade E-2 on 1 November 1985 and to pay grade E-3 on 5 February 1986.  

3.  On 17 March 1986, a bar to reenlistment was initiated against the applicant based on positive urinalysis results on 28 February 1986.  The bar was approved on 20 March 1986.

4.  On 26 March 1986, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana between 5 and 20 February 1986.  His punishment included a reduction to pay grade E-2 and a forfeiture of $167.00 pay (suspended).  The suspension of pay in the amount of $167.00 was vacated on 12 August 1986.  

5.  On 14 August 1986, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 7 August 1986.  His punishment included a reduction to pay grade E-1 and 7 days in confinement.  He did not appeal the punishment and was reduced to pay grade E-1 on 9 September 1986.

6.  On 24 December 1986, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for the wrongful appropriation of tools from a tool box on an M-88 tank on 29 November 1986 and leaving his appointed place of duty on 29 November 1986.  His punishment included a forfeiture of $319.00 pay per month for 1 month, restriction to the barracks for 45 days, and 45 days of extra duty.  He did not appeal the punishment.

7.  On 3 February 1987, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for breaking restriction on 23 January 1987 and failing to go at the time prescribed to his appointed place of duty on 23 January 1987.  His punishment included a forfeiture of $329.00 pay for 
1 month.  He did not appeal the punishment.

8.  On 27 January 1987, the applicant's company commander advised the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, with a general discharge, for misconduct-pattern of misconduct.  

9.  On 27 January 1987, the applicant acknowledged receipt of the commander's notification.  On 29 January 1987, after consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

10.  On 2 February 1987, the applicant's company commander recommended the applicant be separated before the expiration of his term of service pursuant to paragraph 14-12b of Army Regulation 635-200 and that he be issued a General Discharge Certificate.  The company commander stated that the applicant was a serious problem and had made no effort to improve.  The chain of command had been more than lenient with the applicant’s behavior since he had been in that unit.  The company commander also stated that the applicant had been counseled for the wrongful use of marijuana and that he had received three Article 15s [actually four Article 15s] over a period of 9 months.  The company commander also stated that he felt the applicant's behavior could not be tolerated in today's Army.

11.  On 3 February 1987, the applicant's battalion commander recommended approval of the company commander's recommendation for the separation of the applicant.  The battalion commander stated, in his opinion, the applicant had no potential for further military service and he did not believe the applicant's retention would be in the best interests of the Army.

12.  On 5 February 1987, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued a general discharge.

13.  On 2 March 1987, the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct with an under honorable conditions discharge.  He was credited with completing 1 year, 11 months, and 2 days of net active service.  He also had lost time from 28 June to 7 July 1985 due to being in confinement.

14.  On 4 December 1989, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a pattern of misconduct which was evident by his record of non-judicial punishment which included the wrongful use of marijuana and other offenses.  The applicant's company commander recommended the applicant for separation because he was a serious problem and he made no effort to improve after the chain of command had been more than lenient with his behavior. 

2.  The applicant's contentions that his youth and irresponsibility affected his service were considered.  The applicant was 19 years and 8 months of age at the time of his entry into active duty status and he was 21 years of age at the time of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  The applicant states, in effect, that he has grown as a man and he is responsible.  However, the applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.  

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


6.  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)                                         AR20090000837



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ABCMR Record of Proceedings (cont)                                         AR20090000837



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