IN THE CASE OF:	  

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090004194 


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 that his 1993 general under honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states he was discharged 16 years ago and would like very much to have the character of his discharge upgraded to a fully honorable.

3.  The applicant provides a copy of his 1993 DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of an unofficial college transcript showing completion of a 2 year degree in Banking and Finance awarded in 2007.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 15 September 1981 and served continuously through a series of reenlistments and extensions until he was discharged from active duty under honorable conditions on 5 March 1993.

3.  Upon entry into the Army, the applicant successfully completed training as an infantryman and served with a variety of units at Fort Stewart, Georgia, in Germany and in Korea, and at Fort Ord, California prior to being reassigned to Fort Wainwright, Alaska in February 1990.  By the time of his assignment at Fort Wainwright, the applicant had been promoted to pay grade E-4, reduced once, promoted again and by February 1989 had been promoted to pay grade E-6.  He had been awarded several personal decorations and three awards of the Army Good Conduct Medal.

4.  In September 1991 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for driving under the influence (DUI) of alcohol on 24 August 1991.  He was also issued a General Officer Memorandum of Reprimand as a result of the DUI.

5.  In October 1991 he was formally counseled for unprofessional conduct and in January 1992 for being disrespectful towards an officer.

6.  In December 1992 he was punished again under Article 15 of the UCMJ for violating a bar to enter Eielson Air Force Base on 24 September and 
25 October 1992.  He was also punished by that same action for having an open container and refusing to take a Blood Alcohol Content Test on 27 September 1992 and for driving on a suspended license on 25 October 1992.

7.  As a result of the December 1992 UCMJ action, the applicant was reduced from pay grade E-6 to pay grade E-5.

8.  On 9 February 1993, the applicant was notified of his unit commander’s intent to recommend him for elimination from the U.S. Army, under the provisions of paragraph 13-2, chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance with a recommendation that he be issued a general discharge under honorable conditions.  The commander stated the reasons for the proposed recommendation were the applicant’s unsatisfactory performance and his belief that the applicant would continue to be a disruptive influence.  The unit commander noted that in his judgment the applicant would not develop sufficiently to become a satisfactory Soldier.


9.  That same day, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He waived his right to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge under honorable conditions.  He made no statements on his own behalf.

10.  On 24 February 1993 the appropriate authority approved the applicant's separation and specified the issuance of a General Discharge Certificate.  

11.  The applicant was discharged, on 5 March 1993, under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  His service was characterized as under honorable conditions.  He was credited with 11 years, 5 months, and 21 days of total active service.

12.  In December 1996 the Army Discharge Review Board denied the applicant’s petition to upgrade the character of his 1993 discharge.

13.  In 2007 the applicant was awarded an Associate’s Degree in Banking and Finance.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, to include separation of individuals, who in the commander’s judgment, will not develop sufficiently to participate satisfactorily in further training, or if it is likely that the circumstances forming the basis for separation proceedings will continue or recur.  Service of individuals separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to a fully honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  He has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The applicant's multiple alcohol-related incidents and failure to conform to standards in spite of counseling by his unit leadership diminished the quality of his service below that meriting a fully honorable discharge.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with applicable regulations and the characterization of his service and the reasons therefore were appropriate, considering all the facts of the case.  His prior honorable service as evidenced by his multiple personal decorations, several awards of the Army Good Conduct Medal, and promotion to pay grade E-6 are indicators the applicant was fully capable of performing honorably.  He has provided no evidence nor shown that his unsatisfactory performance was excusable.  

4.  The mere passage of time and good post service conduct does not serve as a basis to upgrade one’s character of service.

5.  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)                                         AR20090004194



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ABCMR Record of Proceedings (cont)                                         AR20090004194



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