IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011628 


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 under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he received a discharge due to Article 15s that he received for misconduct.  However, he was young and immature at the time and his misconduct was not criminal.  They were for tardiness, not following orders, and other minor infractions.  He adds that he was told his discharge would be upgraded to honorable after 6 months.  When he requested a copy of his separation document, he discovered that it had not been upgraded.  This is preventing him from obtaining health care and other benefits based upon his last enlistment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 September 1989; and a copy of a letter from the National Personnel Records Center, St. Louis, MO, dated 23 March 2009, 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 records show he was born on 8 December 1963 and he enlisted in the Regular Army (RA) at the age of 19 for a period of 3 years on
25 October 1983.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 19K (Armor Tank Crewmember).  He also executed a 5-year reenlistment on 24 October 1986.  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

3.  The applicant’s records also show he served in Germany from 6 March 1984 to 31 August 1985.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 show the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Driver and Mechanic Badge with Driver-T (for tracked vehicles) and Driver-W (for wheeled vehicles) Bars, and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar.

4.  On 27 February 1989, the applicant accepted nonjudicial punishment(NJP)  under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 2 February 1989 to on or about 20 February 1989 and willfully disobeying a lawful order on or about 14 February 1989.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $223.00 pay per month for one month (suspended until 26 August 1989), and 14 days of restriction and extra duty.  Additionally, on
12 May 1989, the suspension of the punishment of forfeiture was vacated after the applicant failed to go at the time prescribed to his appointed place of duty on 15 April 1989.

5.  On 20 March 1989, the applicant’s immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against the applicant citing his prior misconduct.  The applicant was provided with a copy of the bar; however, he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the proper authority on 21 March 1989.  On 19 April 1989, the applicant was presented with a copy of the approved action and he elected not to appeal the Bar to Reenlistment.

6.  The applicant’s records reveal he accepted additional NJP action under the provisions of Article 15 of the UCMJ as follows: 

	a.  on 15 May 1989, for twice failing to go at the time prescribed to his appointed place of duty on or about 15 April and 15 May 1989, being AWOL during the period from on or about 16 April 1989 to on o about 18 April 1989, and disobeying a lawful order from a superior commissioned officer on or about
14 May 1989.  His punishment consisted of a reduction to private (PV2)/E-2, and 
45 days of restriction and extra duty; and

	b.  on 11 July 1989, for failing to go at the time prescribed to his appointed place of duty on or about 12 June 1989 and being found drunk on duty on or about 26 June 1989.  His punishment consisted of a reduction to private (PV1)/ E-1, a forfeiture of $250.00 pay per month for 2 months, and 45 days of restriction and extra duty. 

7.  The applicant’s records contain an extensive history of counseling for various infractions, including failure to report, not being prepared for inspections, absence from duty, and other infractions. 

8.  On 25 July 1989, 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 – Enlisted Personnel) for a pattern of misconduct.  Specifically, the immediate commander cited the applicant’s AWOL and being drunk on duty.

9.  On 8 August 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action 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 waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

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


11.  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 an apathetic attitude toward continued military service, he did not respond to counseling or punishment, and he did not have any desire to continue being a Soldier.  The commander further recommended an under other than honorable conditions discharge.

12.  On 14 August 1989, the applicant’s senior commander recommended the applicant be separated from the Army for misconduct with the issuance of an under other than honorable conditions discharge. 

13.  On 13 September 1989, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 21 September 1989.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-pattern of misconduct with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 5 years, 10 months, and 21 days of creditable military service and had 6 days of lost time.

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

16.  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.  

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant was 19 years of age at the time he enlisted and 22 years of age at the time he committed his various misconduct. However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The evidence of record shows the applicant had a history of serious disciplinary problems including AWOL and being drunk on duty.  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.  Accordingly, he was discharged under the provisions of paragraph 14-12(b) of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.

4.  The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.   

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.



      ___________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)                                         AR20090011628



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ABCMR Record of Proceedings (cont)                                         AR20090011628



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