IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20090001758 


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, that he was going through a personal crisis with his grandparents who had raised him and requested to be relocated, which was denied by his noncommissioned officers.  He claims he sought the counsel of the chaplain and believes that receiving a GD was unjust because his military records will show he was an excellent Soldier.

3.  The applicant provides no documentary evidence 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 records show he enlisted in the Regular Army and entered active duty on 22 August 1989.  It also shows he trained in and was awarded military occupational specialty 13B (Cannon Crewmember) and that the highest rank he attained while serving on active duty was specialist/E-4.

3.  The applicant's record shows that during his tenure on active duty he earned the Army Service Ribbon, National Defense Service Medal, Southwest Asia (SWA) Service Medal with two bronze service stars, Parachutist Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 6 September 1991, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) on or about 28 May 1991 until on or about 1 July 1991.  His punishment for this offense was a forfeiture of $211.00, reduction to private/E-2 (PV2), and 30 days of extra duty and restriction.

5.  On 24 September 1991, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), by reason of misconduct – commission of a serious offense.  The unit commander cited the reason for his proposed action as the applicant's AWOL from 28 May 1991 through 1 July 1991.

6.  On 25 September 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, his right to consulting counsel, and he elected not to submit a statement in his own behalf.

7.  On 7 October 1991, the separation authority approved the applicant’s separation and directed that he receive a GD.  On 21 October 1991, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct – commission of a serious offense.  It also shows that at the time he had completed a total of 2 years and 26 days of creditable active military service, had accrued 34 days of time lost due to AWOL, and held the rank of PV2.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a of 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.

10.  Chapter 14 of the same regulation 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, and convictions by civil authorities.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general or honorable discharge if such is merited by the Soldier’s overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD was unjust and should be upgraded to an HD based on his overall record of service and because he received improper advice was carefully considered.  However, there is insufficient evidence to support this claim.

2.  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 his rights were fully protected throughout the separation process.

3.  The evidence of record and the independent evidence provided by the applicant fail to show he was improperly advised or that the characterization of his service was unjust.  Although the authority and reason for the applicant's discharge authorized the imposition of an under other than honorable conditions discharge, the separation authority granted the applicant a GD based on his overall record of service, which included service in SWA.  However, the applicant's disciplinary history, which included his acceptance of NJP for being AWOL for 34 days, clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Therefore, his overall record of service clearly did not support the issuance of an HD by the separation authority at the time of his discharge, nor does it support an upgrade 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)                                         AR20090001758



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ABCMR Record of Proceedings (cont)                                         AR20090001758



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