IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005588 


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 discharge be upgraded to honorable.

2.  The applicant states that he was young and too immature to handle the responsibilities of being both a Soldier and the father of a sick child.  He did not know how to ask for help.  Now he is more mature and recognizes his errors.  An upgrade will improve his employability.

3.  The applicant provides no supporting documentation.

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, having married on 29 June 1990, enlisted and entered active duty on 5 July 1990 at the approximate age of 18 years and 9 months.  He completed training including advanced individual training as a materiel handling and storage specialist and was assigned to Fort Bragg, NC.

3.  He was deployed for Operation Desert Shield/Desert Storm from 14 October 1990 to 28 March 1991.

4.  The applicant acknowledged counseling on 10 May 1991 for being absent from his appointed place of duty on 13 August 1991, for reporting that his military identification card was unusable and needed to be replaced when, in fact, he knew it was lost, and for having neither a civilian driver's license nor a telephone in his off-base residence so that he could comply with military recall provisions; on 24 September 1991 for being absent from his appointed place of duty when there was a military alert; and on 13 November 1991 for indebtedness and for running out of fuel after being ordered to check the fuel in his assigned vehicle.

5.  On 13 November 1991, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 5 October 1991 to 8 October 1991.  The punishment consisted of suspended reduction to pay grade E-2.
 
6.  He received further counseling on 22 November 1991 for neither getting a flu shot as directed nor returning promptly to his place of duty, on 16 December 1991 for being absent from his appointed place of duty, and on 27 December 1991 for being absent from his appointed place of duty.  He was also notified that he was being recommended for separation due to a pattern of misconduct.

7.  The applicant was AWOL from 10 January 1992 to 14 January 1992 [no disposition documented in available records] and was counseled for AAPD on 17 January 1992.

8.  The suspended reduction from the 13 November 1991 NJP was vacated on 16 January 1992 because the applicant was absent from physical training formation.

9.  On 17 January 1992, the company commander recommended the applicant be separated for a pattern of misconduct.  The battalion commander recommended a general discharge.

10.  On 22 January 1992, the applicant consulted with counsel and voluntarily waived his right to have a board of officers consider his case, provided he received no worse than a general discharge.  He indicated that he was not submitting statements in his own behalf.

11.  The separation authority approved the recommendation, directed a general discharge, and waived any rehabilitation requirements because such action was unlikely to produce a quality Soldier.

12.  The applicant was accordingly separated on 21 February 1992 under the provisions of Army Regulation 635-200, chapter 14, for misconduct, with a general under honorable conditions discharge.

13.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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 discharge if such is merited by the Soldier’s overall record.  

14.  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 states that he was young and too immature to handle the responsibilities of being both a Soldier and the father of a sick child.  He did not know how to ask for help.  Now he is more mature and recognizes his errors.  An upgrade will improve his employability.

 2.  The applicant's contentions have been noted and carefully considered.  However, there is no evidence to show that the applicant was unusually immature or had any particular family problems.

3.  Clearly, his own behavior led to his discharge and the evidence indicates that the command was both patient and lenient in dealing with him.  He could have been punished for numerous additional infractions and he could have received a much less favorable discharge.

4.  The discharge process was in accordance with applicable law and regulations and the applicant's service was humanely characterized.

5.  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 record does not contain any evidence and the applicant failed to submit any evidence that would satisfy this requirement.

6.  In view of the above, there is no basis for granting the applicant's 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)                                         AR20090005588



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ABCMR Record of Proceedings (cont)                                         AR20090005588



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