IN THE CASE OF:	  

		BOARD DATE:	         1 September 2009

		DOCKET NUMBER:  AR20090005623 


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 honorable.

2.  The applicant states, in effect, that he wants his discharge upgraded because he wants to reenter the Armed Forces and to clean up his tainted government record for future employment if he is not allowed to reenlist.  He indicates that he was young and immature, that he would like a second chance to redeem himself, and that he takes responsibility for his actions.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a memorandum, dated 19 December 2008, subject:  Request Waiver Approval; a U.S. Army Recruiting Command (USAREC) Level RE [Reentry Eligibility] Code Waiver; a memorandum, dated 10 January 1990, subject:  Separation Under the Provisions of Army Regulation 635-200, Paragraph 14-12b, Patterns of Misconduct; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 5 June 1970.  He enlisted in the Regular Army on 20 September 1988 for a period of 4 years.  He successfully completed one-station unit training in military occupational specialty 11B (infantryman).

3.  Between 2 April 1989 and 26 October 1989, the applicant was counseled on numerous occasions for various infractions which included assault, being late for formations, improper uniform, disrespect, missing formations, and sleeping on duty.

4.  On 23 October 1989, nonjudicial punishment was imposed against the applicant for absenting himself from his prescribed place of duty.  His punishment consisted of extra duty.

5.  On 27 October 1989, a bar to reenlistment was imposed against the applicant.

6.  On 21 November 1989, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a reduction to E-1, restriction, and extra duty.

7.  On 10 January 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  The unit commander cited that the applicant had displayed a continued pattern of failures to repair, disobeying orders, dereliction of duty, and two Article 15s.

8.  On 10 January 1990, the applicant consulted with counsel, waived his rights, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected not to submit a statement in his own behalf.

9.  On 17 January 1990, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  Accordingly, the applicant was discharged with a general discharge on 31 January 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 1 year, 4 months, and 11 days of creditable active service.

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

13.  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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed one-station unit training.

2.  A discharge is not upgraded for the purpose of reenlisting or obtaining employment opportunities.

3.  The applicant's record of service included numerous adverse counseling statements, two nonjudicial punishments, and a bar to reenlistment.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.



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)                                         AR20090005623



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ABCMR Record of Proceedings (cont)                                         AR20090005623



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