IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090009577 


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, in effect, that his discharge was based on one incident during his military career.  He believes that justice has been served and his discharge should be changed to honorable.  He indicates that he was a very good Soldier throughout his military career; however, after experiencing personal/marital problems he had a hard time dealing with the military life style and he requested to leave the military.  He goes on to state that he was young and immature and he made a very bad decision when he went absent without leave (AWOL) but he thought this was the only way to leave the military.  He points out that since his discharge he has made a great life for himself and his family, that he is still married to the same person and they have four children, and that he needs his discharge upgraded to allow him to work overseas.
 
3.  The applicant provides his resume and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 was born on 3 May 1967.  He enlisted in the Regular Army on 15 November 1988 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewmember).  On 6 November 1991, he extended his enlistment for a period of 6 months.  On 30 March 1992, the applicant was honorably discharged for immediate reenlistment.  On 31 March 1992, he reenlisted for a period of 
2 years.   

3.  Between 10 November 1992 and 22 March 1993, the applicant was counseled on numerous occasions for various infractions which included missing formation, failures to repair (FTRs), AWOL, and bad checks. 

4.  On 7 April 1993, nonjudicial punishment was imposed against the applicant for being AWOL from 19 February 1993 to 18 March 1993.  The applicant's DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) does not show any punishment was imposed.

5.  On 14 April 1993, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant's numerous FTRs, bad checks, and being AWOL.

6.  On 14 April 1993, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement on his own behalf.  In summary, he requested an honorable discharge because he was a very good Soldier, he had a prior honorable discharge, and had served two overseas tours.  He stated that after he returned home from Operation Desert Storm he had pay problems which caused marital problems and then his grandmother and mother passed away.  He felt his chain of command abandoned him and did not care so he went AWOL.  

7.  On 20 April 1993, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  Accordingly, the applicant was discharged on 4 May 1993 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 4 years, 4 months, and 21 days of creditable active service with 27 days of lost time due to AWOL.

9.  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.

10.  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 (military or civilian 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.

11.  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.  Age is not a sufficiently mitigating factor.  The applicant was 21 years old when he enlisted.  In addition, he completed over 4 years of service before his misconduct.

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

3.  Although the applicant contends that his discharge was based on one incident during his military career, his record of service included numerous adverse counseling statements for various infractions and nonjudicial punishment for being AWOL.  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.

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.

5.  The type of discharge directed and the reasons were therefore 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)                                         AR20090009577





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ABCMR Record of Proceedings (cont)                                         AR20090009577



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