IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090008691 


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 under honorable conditions discharge be upgraded to honorable. 

2.  The applicant states that he wants his discharge upgraded. 

3.  The applicant provides no supporting documentation 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.  On 18 August 1994, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 16S (Avenger Crewmember).
3.  On 17 January 1995, the applicant was assigned to Fort Campbell, Kentucky.

4.  On 27 April 1995, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order, dereliction of duty, and for being disrespectful in language towards a commissioned officer.  The punishment included reduction to pay grade E-1, a forfeiture of $199.00 pay per month for 1 month and 14 days of restriction and extra duty.

5.  On 4 May 1995, the applicant was involved in a verbal confrontation with another Soldier that escalated into a physical altercation.  They swung and struck each other.  They were apprehended and transported to the military police station.   The applicant was released to his unit. 

6.  On 16 May 1995, the applicant accepted NJP for failure to go to his appointed place of duty and for willfully disobeying a lawful order (twice).  The punishment included reduction to pay grade E1, a forfeiture of $427.00 pay for 2 months and 45 days of restriction and extra duty.

7.  On 7 June 1995, the applicant’s commander advised the applicant of his intention to recommend him for separation from the service under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander cited the applicant's offenses of dereliction of duty, being disrespect towards a commissioned officer, disobeying a lawful order, and assault.  

8.  On 7 June 1995, the applicant consulted with counsel concerning his rights He did not submit a statement in his own behalf.  

9.  On 8 June 1995, the applicant’s commander recommended that the applicant be separated from the service under the provisions of chapter 14, Army Regulation 635-200, due to misconduct with an under other than honorable conditions discharge.   

10.  On 8 June 1995, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge, under honorable conditions.

11.  Accordingly, on 15 June 1995, the applicant was discharged under honorable conditions.  He had completed 9 months and 28 days of creditable active service.

12.  On 10 April 1997, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied the request.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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.  The applicant contends that his discharge should be upgraded.

2.  The applicant's altercation and two NJP's for multiple offenses demonstrates a pattern of misconduct.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20090008691



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ABCMR Record of Proceedings (cont)                                         AR20090008691



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