IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090010672 


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 an honorable discharge and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect “YES” in block 15, to show he contributed to the Post-Vietnam Veterans Education Assistance Programs.

2.  The applicant states that he did sign up for the Montgomery G.I. Bill and deductions were taken out of his pay until the required contributions were paid; however, his DD Form 214 reflects that he did not contribute.  He further states that his discharge should be upgraded because he was told at the time that it would be upgraded after 6 months. 

3.  The applicant provides a copy of his DD Form 214 and three handwritten pages explaining 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 enlisted in the Regular Army in Raleigh, North Carolina on 29 April 1986 for a period of 3 years and training as an explosive ordnance disposal (EOD) specialist.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Redstone Arsenal, Alabama to undergo advanced individual training (AIT) as an EOD specialist.  

3.  The applicant was deemed an academic failure on 21 August 1986 and he was transferred to Fort Gordon, Georgia to undergo training as a single channel radio operator.  He completed his training and was transferred to Germany on 28 December 1986.  He was advanced to the pay grade of E-4 on 1 November 1987.

4.  On 3 June 1988, nonjudicial punishment (NJP) was imposed against the applicant for assaulting a female Soldier, for being drunk and disorderly, making a false official statement, disobeying a lawful order from a superior noncommissioned officer, and for two specifications of the wrongful use of provoking words.  His punishment consisted of a reduction to pay grade E-2, extra duty, and restriction.

5.  On 4 January 1989, NJP was imposed against the applicant for two specifications of striking two Soldiers in the face with his fist and one specification of disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, extra duty, and restriction. 

6.  On 1 February 1989, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He cited as the basis for his recommendation the applicant’s disciplinary record, his failure to respond to repeated counseling sessions, and that his conduct was prejudicial to good order and discipline.  He recommended that the applicant be issued a general discharge.

7.  After consulting with counsel, the applicant waived his rights and elected to submit a statement in his own behalf, whereas he asserted that his chain of command should have referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) after the first incident and contended that had they done so, he would not have had a second incident.  He went on to state that he had rehabilitative potential and contended that he could be a good Soldier. 

8.  The appropriate commander (a brigadier general) waived further rehabilitation and directed that he be discharged and issued a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 27 February 1989 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.  He had served 2 years, 9 months, and 29 days of total active service.

10.  His DD Form 214, block 15 contains an “X” in the “NO” block.

11.  The applicant is currently incarcerated by the North Carolina Department of Corrections.

12.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  The Post-Vietnam Era VEAP was in effect from 1 January 1977 to 30 June 1985.  The Montgomery GI Bill became effective 1 July 1985 and remains in effect today.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Considering his misconduct, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant did not serve during the period of the Post-Vietnam Era VEAP that ended on 30 June 1985.  He enlisted on 29 April 1986.  Accordingly, his
DD Form 214 correctly reflects that he did not contribute to that program. 

4.  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)                                         AR20090010672



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ABCMR Record of Proceedings (cont)                                         AR20090010672



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