IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090006843 


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 upgrade of her general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that 17 years have passed to correct her misconduct and that she would like her discharge upgraded for employment with the U.S. Government.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and seven character reference letters in support of her 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 enlisted in the Regular Army (RA) on 27 May 1988 for a period of 4 years.  She successfully completed basic combat and advanced individual training in military occupational specialty (MOS) 91H (orthopedic specialist).  

3.  On 19 September 1990, nonjudicial punishment was imposed against the applicant for behaving with disrespect toward a superior commissioned officer, refusing to obey a lawful command, and disorderly conduct.  Her punishment consisted of being reduced to the rank/grade of private first class (PFC)/E-3 (suspended), a forfeiture of pay, and restriction and extra duty.  On 19 October 1990, the suspended portion of the punishment imposed on 19 September 1990 was vacated.

4.  On 8 January 1991, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order (two specifications), damaging personal property (two specifications), and assault.  Her punishment consisted of a reduction to the rank/grade of private (PV1)/E-1, a forfeiture of pay, and restriction and extra duty.

5.  On 16 January 1991, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct - pattern of misconduct.  The unit commander stated that the applicant had developed patterns of misconduct which were prejudicial to the good order and discipline of the Army and that she had been given opportunities to improve her conduct but she continued to violate orders, assault fellow Soldiers, and damage the personal property of others.

6.  On 17 January 1991, the applicant consulted with counsel, waived her rights, and acknowledged that she might encounter substantial prejudice in civilian life if a general discharge were issued.  She elected not to submit a statement in her own behalf.  

7.  On 6 February 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general, under honorable conditions discharge.

8.  Accordingly, the applicant was discharged with a general, under honorable conditions discharge on 14 February 1991 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct.  She had served a total of 2 years, 8 months, and 18 days of creditable active service.


9.  In support of her claim, the applicant provided seven character reference letters from six co-workers and a friend.  They attest that the applicant is motivated, dedicated, a valuable asset, reliable, professional, dependable, and trustworthy.

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

11.  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.

12.  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 character reference letters submitted in behalf of the applicant fail to show that her discharge was unjust and should be upgraded.

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

3.  The applicant's record of service included two nonjudicial punishments for serious offenses.  As a result, her 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.  She had an opportunity to submit a statement in which she could have voiced her concerns and she 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)                                         AR20090006843



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ABCMR Record of Proceedings (cont)                                         AR20090006843



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