BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090006394 


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, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that one of the proudest moments he had was when he enlisted in the military.  He states, in effect, that he blames his problems in the military on being young, ignorant, and irresponsible.  He continues to state, in effect, that after his general discharge, he admitted himself to a drug and alcohol rehabilitation program and has been a productive member of society for the last 19 years.  He concludes by stating, in effect, that with the passage of time, age and wisdom have set in and, therefore, he would like his discharge upgraded.    

3.  The applicant provides no additional documents 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’s record shows that he enlisted in the Regular Army and entered active duty on 19 January 1988.  He was 23 years old when he enlisted and had graduated from high school.

3.  In August 1988, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of cocaine.  In March 1989, he was punished under Article 15 of the UCMJ for being disrespectful in language and deportment towards a noncommissioned officer.  In April 1989, he was punished under Article 15 of the UCMJ for disorderly conduct.  In July 1989, he was punished under Article 15 of the UCMJ for failure to go at the time prescribed to his appointed place of duty on two different occasions.

4.  On 20 July 1989, the applicant was recommended for a bar to reenlistment.  On 7 August 1989, it was approved.  The applicant did not appeal the bar to reenlistment.

5.  On 1 August 1989, a mental evaluation cleared the applicant for any administrative action deemed appropriate. 

6.  On 6 September 1989, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14-12a Army Regulation 635-200, by reason of misconduct-minor disciplinary infractions, with a recommendation that he receive a general discharge under honorable conditions.  The reason for the proposed action was the applicant’s Article 15s for wrongful use of cocaine, for disorderly conduct, and for two occasions of failure to repair.

7.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and declined to submit statements in his own behalf.  

8.  On 29 September 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14 -12a, by reason of misconduct (minor disciplinary infractions), with a general discharge under honorable conditions.  The DD Form 214 he was issued at the time confirms he held the rank of private/E-1 and had completed a total of 1 year, 8 months, and 11 days of active military service.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  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.

11.  Army Regulation 635-200, in pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was young, ignorant, and irresponsible were carefully considered.

2.  Records show that the applicant was 23 years of age at the time of his offenses and had graduated high school.  There is no evidence that indicates that the applicant was any less mature or more ignorant or irresponsible than other Soldiers of the same age or younger who successfully completed military service.

3.  The evidence of record shows that the applicant was discharged with a general discharge under honorable conditions by reason of misconduct (minor disciplinary infractions).  Not only did he use a controlled substance, cocaine, he compounded his misconduct by being disrespectful to a noncommissioned officer.  Therefore, his service does not warrant an upgrade of his discharge to an honorable discharge.

4.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.

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 applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090006394



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1