IN THE CASE OF:	  

		BOARD DATE:	      15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007990 


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 his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states that his discharge was inequitable because it was based on a couple of incidents and that he should have been granted a chance for a rehabilitative transfer.  He adds that a review of his records would show that he was a good Soldier.  He was 19 years old at the time and lost his Montgomery GI Bill (MGIB) educational benefits. 

3.  The applicant provides a copy of a letter from the National Personnel Records Center, dated 20 April 2009, in support of his request.

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 records show he was born on 2 April 1970.  At the age of
17 years, he enlisted in the Regular Army (RA) for a period of 3 years on 18 May 1987.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 75E (Personnel Actions Specialist).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

3.  The applicant’s records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 18 August 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to follow a lawful order from his company first sergeant (1SG).  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $175.00 pay for 1 month, 14 days of restriction, and 7 days of extra duty. 

5.  On 18 November 198, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ.  A copy of the Article 15 is not available for review with this case; however, his records reveal that on 2 January 1989, the suspension of punishment of 14 days of restriction, reduction to PV2/E-2, and forfeiture of $175.00 pay imposed on 18 November 1988 was vacated and ordered executed. The basis for the vacation of the applicant's suspended punishment was that he failed to go at the time prescribed to his appointed place of duty on or about
7 December 1988.

6.  On 23 March 1989, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 9 March 1989.  His punishment consisted of a reduction to private (PV1)/E-1 (suspended until 22 June 1989), a forfeiture of $163.00 (suspended until 22 June 1989), and 14 days of restriction and extra duty. 

7.  On 2 June 1989, the suspension of punishment of reduction to PV1/E-1 and forfeiture of $163.00 pay imposed on 23 March 1989 was vacated and ordered executed.  The basis for this vacation of suspension was the applicant again failed to go at the time prescribed to his appointed place of duty on or about
1 June 1989.

8.  On 9 June 1989, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - a pattern of misconduct.  Specifically, the 
immediate commander cited the applicant’s failure to go at the time prescribed to his appointed place of duty on 3 August 1988, 8 December 1988, 9 March 1989, 24 and 31 May 1989, and 7 and 8 June 1989; and his failure to obey a lawful order from his company 1SG on 1, 8, and 15 November 1988.

9.  On 9 June 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived a personal appearance before an administrative separation board and elected not to submit a statement in his own behalf.

10.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general, under honorable  conditions  discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

11.  On 10 July 1989, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct - pattern of misconduct.  

12.  On 17 July 1989, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - pattern of misconduct, and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 28 July 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated with a general, under honorable conditions discharge.  This form further confirms he completed a total of 2 years, 2 months, and 11 days of creditable military service.

13.  On 1 August 1995, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

14.  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, under honorable conditions 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.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  Contrary to the applicant’s contention that he was young and immature at the time, the evidence of records shows he was 19 years of age at the time of his offenses.  The available evidence does not support the applicant’s contention that his pattern of misconduct was a result of his age.  

3.  The evidence of record shows the applicant had a history of disciplinary problems, including three instances of NJP and multiple instances of failing to go at the time prescribed to his appointed place of duty.  It appears that he was counseled repeatedly by his chain of command but he failed to respond to counseling.  Accordingly, his chain of command initiated separation action against him.  Absent his pattern of misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.

4.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  


5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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.



      __________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)                                         AR20090007990



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ABCMR Record of Proceedings (cont)                                         AR20090007990



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