IN THE CASE OF:	  

		BOARD DATE:	       28 APRIL 2009

		DOCKET NUMBER:  AR20090001423 


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 an upgrade of his general discharge.

2.  The applicant states that issuing him a general discharge was very unfair.  He also states that he had a major emergency at the time when his house caught fire and that he was not given ample time off to take care of this situation.  This led to a letter of reprimand and a bad officer evaluation report.  Aside from that incident, he never received any Uniform Code of Military Justice action or nonjudicial punishment under the provisions of Article 15.  He further states that as a lieutenant he performed in a captain’s position and as a captain he performed in a major’s position.  An upgrade of his discharge would ease a lot of hurt that he went through over the years which led to some psychiatric and/or employment problems.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 November 1987, 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 records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 8 May 1982.  He subsequently entered active duty on 24 July 1982 and completed the Ordnance Officer Basic Course and the Basic Airborne Course.

3.  The applicant’s records also show he completed an overseas tour in Germany and was awarded the Army Commendation Medal, the Army Achievement Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the Parachutist Badge.

4.  On 23 July 1987, while a member of Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC, by memorandum, the applicant requested to be released from active duty.  He indicated that the receipt of a formal letter of reprimand had decreased his effectiveness as a commissioned officer and that he planned to start school immediately after his release.  A copy of the formal letter of reprimand is not available for review with this case.

5.  On 22 October 1987, by message, Headquarters, Department of the Army, notified the applicant that his voluntary request for release from active duty was approved in accordance with chapter 3, section XX, of Army Regulation 635-100 (Officer Personnel).  Accordingly, the applicant was released from active duty on 1 November 1987.  The DD Form 214 he was issued shows he was released under the provisions of chapter 3, section XX, Army Regulation 635-100 with a character of service of under honorable conditions (general).  This form also shows he completed 5 years, 3 months, and 7 days of creditable active military service.

6.  Army Regulation 635-100, in effect at the time, provided the authority for the separation of commissioned and warrant officers from the Active Army.  Chapter 3, section XX, of the regulation specifically provided for early release of obligated officers to attend school.  It states that officers serving initial tours of active duty, whose services are not essential to the mission of their assigned organizations and who meet the requirements of this section, may request release from active duty to attend a recognized institution of higher education.

7.  Chapter 1 of this regulation states, in pertinent part, that except as provided, an officer's discharge will be characterized as honorable, general, or under other than honorable conditions.  The character of discharge is predicated on the officer's behavior and performance of duty while a member of a military service.  Although characterization is normally based on a pattern of behavior and duty performance rather than an isolated incident, there are circumstances in which conduct reflected by a single incident may provide the basis for characterization. An Honorable Discharge Certificate will normally be furnished unless certain conditions exist that warrant a general or dishonorable discharge, or as directed by the Secretary of the Army.  A General Discharge Certificate is furnished in the cases of an unqualified resignation in circumstances involving serious misconduct, discharges because of serious misconduct including misconduct for which punishment has been imposed which renders an officer unsuitable for service, discharge for physical disability resulting from intentional misconduct, and discharge under the military personnel security program if directed by Headquarters, Department of the Army.

8.  Army Regulation 635-200 (Personnel Separations), 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.

CONCLUSIONS:

1.  The applicant's contention that his general discharge should be upgraded to honorable was carefully considered; however, there is insufficient evidence that shows his discharge was in error or unjust.

2.  The evidence of records shows that the applicant voluntarily requested separation under the provisions of chapter 3 of Army Regulation 635-100 because he felt the formal letter of reprimand he received had decreased his effectiveness as a commissioned officer and that he planned to start school immediately after his release.  His request was approved by the Department of the Army with the issuance of a General Discharge Certificate.  He was accordingly discharged.

3.  The type of discharge directed and the reasons for separation appear to be appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.  Without having the letter of reprimand and related documents to review, it must be presumed that his command and the Department of the Army considered his total pattern of behavior and duty performance in determining that he should be given a general rather than a fully honorable characterization of service.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090001423



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001423



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1