IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090009130 


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 the character of service of his under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states, in effect, he was young when he entered the Army and he made minor mistakes; however, he has learned from his mistakes.  He also states that he never committed any felonies or gross misdemeanors during his military service nor after he was discharged.  He adds that he was witness to many Soldiers being punished for worse things than he had done, but they were honorably separated from the Army.  He concludes by stating he has been a correctional officer at a maximum security prison for the past 6 years and also a counselor for troubled youth for 2 years.

3.  The applicant provides no additional 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.  The applicant entered active duty in the Regular Army on 25 February 1987. His date of birth is recorded as 17 December 1968.  Upon completion of training, he was awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 January 1989 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), section III (Acts or Patterns of Misconduct), paragraph 14-12b, based on a pattern of misconduct and his service was characterized as under honorable conditions.  Based on the authority and reason for his separation, the applicant was issued the separation code "JKM" and assigned a reentry eligibility (RE) code of 3.  At the time he had completed 1 year, 10 months, and 18 days of net active service during the period of service under review.

5.  On 28 February 1991, a request for waiver based on a separation disqualification (i.e., RE code 3 - misconduct) was submitted on behalf of the applicant.  This document shows that the applicant received an Article 15 in December 1988 for the offense of driving under the influence and he was reduced to private (E-2).  The request to waive the disqualification for the purpose of enlistment in the Illinois Army National Guard (ILARNG) was granted on 12 April 1991.

6.  On 23 April 1991, the applicant enlisted in the Army National Guard of the United States (ARNGUS) and ILARNG.

7.  A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was discharged from the ARNGUS and ILARNG on 30 June 1995 in accordance with the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) based on unsatisfactory participation and his service was characterized as under honorable conditions.  At the time he had completed 4 years, 2 months, and 8 days of net service this period; 1 year, 10 months, and 16 days of prior active Federal service; and 6 years and 24 days of total service for pay.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9.  Army Regulation 635-200, in effect at the time, 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

10.  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 discharge should be upgraded because he was young when he entered the Army, only made minor mistakes, and he has been a responsible member of his community since he was discharged.

2.  The applicant's contention that he was young and only made minor mistakes during his military service is not sufficiently mitigating to warrant relief.  The applicant was 18 years of age when he entered the Army, he satisfactorily completed training, and he then served for approximately 1 year and 9 months before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's available military personnel records show he received nonjudicial punishment for driving under the influence; he was reduced to private (E-2) and discharged based on a pattern of misconduct.  Thus, the evidence of record shows the applicant's record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  The applicant's post-service conduct and service in the community since his discharge were carefully considered.  The applicant's good post-service conduct and service are commendable, but is not so meritorious as to warrant an upgrade of his discharge.

6.  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)                                         AR20090009130



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ABCMR Record of Proceedings (cont)                                         AR20090009130



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