IN THE CASE OF:	

		BOARD DATE:	       15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007771 


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 that he would like his discharge upgraded for his own personal self assurance.  He contends that his life and character have changed since his time in the service.  He is a deacon in his church and he is involved in youth activities serving as a coach. 

3.  The applicant provides no documentary evidence 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.  Having prior inactive service and active service, the applicant enlisted in the Regular Army on 14 April 1986 for a period of 3 years.  He served as a man portable air defense pedestal mounted stinger crewmember and was honorably discharged on 19 October 1988 for immediate reenlistment.  He reenlisted on 
20 October 1988 for a period of 3 years.  

3.  Between 17 August 1989 and 28 March 1990, the applicant was counseled on numerous occasions for various infractions which included missing formations, being absent without leave (AWOL) from 18-20 March 1990, indebtedness, having a delinquent account, failure to repair, failure to pay just debt, and being late for formation.

4.  On 29 January 1990, nonjudicial punishment was imposed against the applicant for dishonorably failing to pay debts (two specifications), violating a lawful general regulation, failure to repair (three specifications), and being derelict in the performance of his duties.  His punishment consisted of a reduction to E-4 (suspended) and a forfeiture of pay (suspended).  On 
22 March 1990, the suspended portions of the punishment were vacated.

5.  On 2 April 1990, a bar to reenlistment was imposed against the applicant.

6.  On 5 April 1990, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  The unit commander cited that he recommended the applicant's elimination because all other attempts to make him a useful Soldier had failed, that he had been given every opportunity to improve his conduct/duty performance, that he had been counseled to no avail, and that all attempts to rehabilitate him were met with negative results.

7.  On 16 April 1990, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14, paragraph 
14-12b, for misconduct (pattern of misconduct).  He cited that the applicant had a pattern of misconduct which consisted of failing to be at appointed places of duty, being AWOL, failure to pay for services rendered, and indebtedness. 

8.  On 16 April 1990, the applicant consulted with counsel and requested consideration of his case by a board of officers.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  

9.  On 2 May 1990, the applicant waived his right to a board of officers.

10.  On 2 May 1990, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  Accordingly, the applicant was discharged with a general discharge on 
4 May 1990 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct (pattern of misconduct).  He had served a total of 7 years and 14 days of creditable active service and 5 days of lost time (20 January 1987 to 21 January 1987 and 19 March 1990 to 21 March 1990).     

12.  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.

13.  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.

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.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant's record of service during his last enlistment included numerous adverse counseling statements, a bar to reenlistment, one nonjudicial punishment for numerous infractions, and 5 days of lost time.  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.

3.  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.    

4.  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.




      _______ _   _XXX______   ___
               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)                                         AR20090007771





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ABCMR Record of Proceedings (cont)                                         AR20090007771



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