IN THE CASE OF:	  

		BOARD DATE:	    9 March 2010

		DOCKET NUMBER:  AR20090011922 


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, in effect, that his general under honorable conditions discharge (GD) of 12 February 1988 be upgraded to an honorable discharge (HD) and that the narrative reason for separation be changed.

2.  The applicant states, in effect, the records at the Department of Veterans Affairs need to be corrected because he is filing for a pension and because he had prior honorable service.  He was let out early due to the Graham-Rudman Act.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), U.S. Army Reserve discharge orders, honorable discharge certificate, and general discharge certificate 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.  After having had prior service, the applicant enlisted in the Regular Army on 28 April 1987 and was trained in and awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he was promoted to specialist four/
E-4 on 22 June 1985 and that this is the highest rank he attained while serving on active duty.  Item 9 (Awards, Decorations, and Campaigns) shows he earned the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the offenses indicated:  2 September 1987 for being absent from his unit without authority, 30 November 1987 for failure to pay a just debt, and 21 December 1987 for disobeying a lawful order and being absent without leave (AWOL) from 12 to 15 December 1987.

5.  On 6 January 1988, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), by reason of misconduct (pattern of misconduct).  The commander cited the applicant's multiple disciplinary infractions between 18 August 1987 and 12 December 1987 and his record of NJP as the basis for taking the action.  He further advised the applicant that he was recommending he receive a GD.

6.  On 7 January 1987, the applicant completed an election of rights in which he confirmed he understood the basis for the contemplated action to separate him under the provisions of paragraph 14-12b, Army Regulation 635-200.  He also confirmed he understood the possible effects of a GD, the rights available to him, and of the effect of a waiver of those rights.  He requested consulting counsel and elected not to submit statements in his own behalf.

7.  On 11 January 1988, the separation authority approved the applicant's separation under the provisions of paragraph 14-12b (pattern of misconduct), Army Regulation 635-200, and directed the applicant receive a GD.  On 12 February 1988, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time shows he was separated in the rank of private/E-1 and that he completed a total of 3 years, 9 months, and 13 days of active military service.
8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

10.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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's contention that his discharge should be upgraded to an HD because he is filing for veterans' benefits and because he had prior honorable service was carefully considered.  However, the Army does not now have and has never had a policy that provided for an automatic upgrade of a discharge based on the passage of time, benefits eligibility, or any other reason.  A discharge may be upgraded by the ADRB or this Board if the action is supported by the member's overall record of service and/or his post-service conduct.

2.  The evidence of record confirms the applicant's separation processing for misconduct was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal a significant disciplinary history that includes his acceptance of NJP on three separate occasions.  As a result, his record was not sufficiently meritorious to support the issuance of an HD by the separation authority at the time of his discharge nor is it sufficiently meritorious to support an upgrade of his discharge at this late date or to support changing the reason for his separation.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting a fully HD.

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)                                         AR20090011922



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ABCMR Record of Proceedings (cont)                                         AR20090011922



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