BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090004763 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that his record is correct.  However, he was a young man who worked hard and played harder.  Since his separation, he has gotten married, had three children and is eight classes away from receiving his bachelor's degree.  He would like to tell his son that he was honorably discharged.

3.  The applicant does not provide any additional documents 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 military records show that he enlisted in the Regular Army, on 18 November 1991, and was awarded the military occupational specialty of cannon crewmember.

3.  On 24 August 1993, the applicant's commander notified the applicant of his intent to recommend the applicant for separation due to a pattern of misconduct with a general discharge.  The applicant was provided his rights in conjunction with that recommendation and he was told he could encounter substantial prejudice in civilian life if he was issued a general discharge.  The applicant waived his rights.

4.  On 24 August 1993, the applicant's commander forwarded the recommendation to discharge the applicant for a pattern of misconduct.  The applicant's commander stated that the applicant had violated lawful general regulations, driven under the influence of alcohol, failed to be where he was suppose to be, and he had been drunk and disorderly.  The applicant's commander indicated the applicant had been counseled on 19 occasions, had been given nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (twice), and he had been convicted by a summary court-martial.

5.  The applicant's commander's recommendation was approved by the appropriate authority and the applicant was discharged, on 17 September 1993, under the authority of Army Regulation 635-200 (Enlisted Separations), Chapter 14, due to a pattern of misconduct and issued a General Discharge Certificate.  He had completed 1 year and 10 months of active service and he had no lost time.  The applicant was 24 years of age at the time.

6.  On 24 January 1997, the Army Discharge Review Board denied the applicant's request to upgrade his general discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, convictions by civil authorities, and desertion or absence without leave.  Action was taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate.

8.  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.  

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had violated lawful general regulations, driven under the influence of alcohol, failed to be at this designated place of duty, and he had been drunk and disorderly.  Those acts of misconduct resulted in him being counseled on 19 occasions, being given two NJPs, and a summary court-martial conviction.  Such a pattern of misconduct clearly shows the quality of the applicant's service generally did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He could have been issued a discharge under other than honorable conditions.  His command chose to issue to him a general discharge.

2.  The applicant's contention that he was young and played hard has been carefully considered.  The applicant was 24 years of age when he was discharged.  As such, he was not that young.  However, many young men work and play hard in the Army without violating rules and regulations.  As such, the applicant's age is not accepted as mitigating.

3.  While it is commendable that the applicant has gotten married, had children, and is trying to better himself by going to college, these are insufficient in and of themselves to upgrade a properly-issued discharge.

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)                                         AR20090004763



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004763



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1