IN THE CASE OF:	  

		BOARD DATE: 	        30 June 2009

		DOCKET NUMBER:  AR20090002651 


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 under honorable conditions (general) discharge to an honorable discharge.  

2.  The applicant states that he is currently seeking an apprenticeship position with the Boilermakers Union and that an upgrade would enhance his opportunity to be accepted into this great program. 

3.  The applicant did not provide any additional documentary evidence 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 enlisted in the Regular Army for a period of 4 years on 16 August 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty 51B (Carpentry and Masonry Specialist).  The highest rank/grade he attained during his military service was private/E-2.

3.  The applicant’s records also show he was awarded the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars and the Army Service Ribbon.

4.  On 2 July 1989, the applicant was apprehended by military police officials at Fort Leonard Wood, MO, for driving while intoxicated.

5.  On 19 July 1989, the applicant received a General Officer Memorandum of Reprimand for Misconduct for operating a motor vehicle while intoxicated.  He was provided with an opportunity to submit a statement on his own behalf, but he elected not to do so. 

6.  On 2 March 1990, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying an order from his commanding officer not to operate his privately owned vehicle on Fort Leonard Wood, MO, on or about 27 February 1990.  His punishment consisted of a forfeiture of $168.00 pay, 14 days of restriction, and 14 days of extra duty.

7.  On 2 March 1990, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for patterns of misconduct.  The specific basis of the recommendation was the applicant’s prior incident of driving while intoxicated and one instance of disobeying a lawful order from his immediate commander.  The commander recommended the applicant receive an under honorable conditions (general) discharge.

8.  On 2 March 1990, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, but declined submitting a statement on his own behalf.  (He was not eligible to have his case considered by a separation board since he had less than 6 years of service and he was not being recommended for an under other than honorable conditions discharge).
9.  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

10.  On 2 March 1990, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander further recommended an under honorable conditions (general) discharge. 

11.  On 6 March 1990, the applicant’s intermediate commander reviewed the recommended separation action and recommended approval of the applicant’s discharge with an under honorable conditions (general) discharge. 

12.  On 7 March 1990, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed he be furnished a General Discharge Certificate.  The DD Form 214 he was issued confirms he was discharged on 9 March 1990 with a character of service of under honorable conditions (general).  This form further confirms that the applicant completed 1 year, 6 months, and 24 days of creditable active military service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  The separation reason in all separations authorized by this paragraph will be “misconduct.”  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  
15.  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 contends that his general discharge should be upgraded to honorable.   

2.  The applicant's record of service shows that he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on at least one occasion and received a General Officer Memorandum of Reprimand for misconduct for driving while intoxicated.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  The ABCMR does not correct records for the purpose of establishing entitlement to other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this 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.




      ___________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)                                         AR20090002651



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ABCMR Record of Proceedings (cont)                                         AR20090002651



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