IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090010922 


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 an upgrade of his discharge from general under honorable conditions to fully honorable.

2.  The applicant states that the reason for his discharge was minor.  He states that he requested an early separation at the time.  He also states that he was discriminated against.  He feels that enough time has passed and his action was such a minor offense.

3.  The applicant did not provide any additional documentary evidence 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 record shows he enlisted in the Regular Army for a period of 4 years on 2 February 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  The applicant's record further shows he served in Korea from on or about 23 May 1983 to on or about 19 May 1984.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 16 July 1984, for violating a general regulation by wrongfully purchasing in excess of the monthly quantity limitations on certain merchandise (i.e., 18 bottles of liquor when authorized 4 and 18 cases of beer when authorized 8) during the month of April 1984.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended until 17 January 1985), a forfeiture of $156.00 pay, 14 days of restriction, and 14 days of extra duty;

	b.  on 13 November 1984, for willfully disobeying a lawful order from a superior noncommissioned officer on or about 6 November 1984 and being derelict in the performance of his duties on or about 6 November 1984.  His punishment consisted of reduction to PV2/E-2 (suspended until 11 March 1985), a forfeiture of $150.00 pay, 14 days of restriction, and 14 days of extra duty; and

	c.  on 9 January 1985, for stealing a radio, the property of another Soldier, on or about 28 May 1984.  His punishment consisted of a reduction to PV2/E-2, a forfeiture of $162.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  The applicant's records contain several counseling statements by members of his chain of command for various infractions including failure to report, failure to follow instructions, absenting himself from duty, and disobeying orders.

6.  On 25 February 1985, 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) for patterns of misconduct.  The specific basis of the recommendation was the applicant's discreditable involvement with civil or military authorities and his prejudicial conduct to good order and discipline.

7.  On 27 February 1984, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation 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 requested consideration of his case by a separation board and a personal appearance before a separation board, but declined submitting a statement on his own behalf.  [He was not eligible to have his case considered by a separation board since he had less than 6 years of service and he was not being recommended for an under other than honorable conditions discharge].

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

9.  On 1 March 1985, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander remarked that the applicant had repeated incidents of failing to follow instructions, NJP, disregard to military directives of his superiors, and that his attitude was not conducive to the good order of the unit.

10.  On 1 March 1985, the applicant's intermediate commander reviewed the recommended separation action and recommended approval of the applicant's discharge.

11.  On 1 March 1985, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed he be furnished a General Discharge Certificate.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 12 March 1985 with a character of service of general under honorable conditions.  This form further confirms that the applicant completed 2 years, 1 month, and 11 days of creditable active military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

13.  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 included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such was merited by the Soldier's overall record.

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, 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 from general under honorable conditions to fully honorable.

2.  The applicant's record of service shows that he accepted NJP under the provisions of Article 15 of the UCMJ on three separate occasions and was counseled countless times regarding his infractions.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  There is no evidence that the applicant requested an early release from the Army or that he suffered discrimination.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant's repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  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.



      _________________________
                 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)                                         AR20090010922



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010922



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1