IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090012490 


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 under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he has twice joined the U.S. Army Reserve (USAR) to service his country and that he would like to continue to serve as long and as proficiently as possible.  He states that continuing to serve in the military will allow him to provide for his family and to serve his country at the same time, continuing a family tradition of military service and/or law enforcement.

3.  The applicant provides nine letters from service members, former service members, friends, and associates all attesting to his good character, service conduct, post-service conduct, and desire to return to active duty.  He also provides certificates of achievement and recognition and a copy of his USAR Honorable Discharge Certificate dated 8 June 1999.

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.  On 9 October 1991, the applicant enlisted in the Regular Army in Jacksonville, Florida, for 3 years and 16 weeks in the pay grade of E-1.  He successfully completed his training as a fire support specialist.

3.  On 30 October 1992, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his appointed place of duty on 4 October 1992 and on 11 October 1992 and for willfully disobeying a lawful order from his senior noncommissioned officer.  His punishment consisted of a reduction in pay grade, a reduction in pay, restriction, and extra duty.

4.  On 12 January 1993, the applicant went absent without leave (AWOL) and he remained absent until he returned to military control on 13 February 1993.

5.  The applicant was notified on 10 March 1993 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 13, for unsatisfactory performance.  His commander cited the company-grade Article 15 that he received for failure to go to his appointed place of duty, willfully disobeying a lawful order from his senior noncommissioned officer, and his AWOL from 12 January 1993 through 13 February 1993 as the basis for his recommendation for discharge.

6.  The applicant acknowledged receipt of the recommendation for discharge on 11 March 1993 and, after consulting with counsel, he opted not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  Accordingly, on 7 April 1993, the applicant was released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance and he was transferred to the USAR Control Group (Reinforcement) to complete his service obligation.  He had completed 1 year, 4 months, and 28 days of net active service and he was furnished a General Discharge Certificate.

8.  The applicant was honorably discharged from the USAR on 8 June 1999.  He enlisted in the USAR on 9 November 2007 and he is currently a member of the USAR.

9.  The applicant has submitted for consideration nine letters from service members, former service members, friends, and associates all attesting to his good character, service conduct, post service conduct, and desire to return to active duty.  He also provides certificates of achievement and recognition and a copy of his USAR Honorable Discharge Certificate dated 8 June 1999.

10.  A review of the applicant's records does not 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.

11.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when in the commander's judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  Paragraph 3-7b also 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 general discharge should be upgraded to a fully honorable discharge based on his service since his REFRAD on 7 April 1993.

2.  The applicant's contentions and his supporting documents were considered.  However, based on the available evidence, his service was not fully honorable during the period of enlistment in question.  His records show that he was AWOL for approximately 30 days and he had NJP imposed against him for three additional acts of indiscipline.  While the applicant is commended on his service since his REFRAD on 7 April 1993, it is not sufficiently mitigating to warrant the requested relief.

3.  In accordance with the applicable regulation, commanders will separate a member under Army Regulation 635-200, chapter 13, when in the commander's judgment the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  There is insufficient evidence to show that his overall record of service was sufficiently meritorious to warrant an honorable separation for that period of 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 has failed to submit evidence that would satisfy this requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012490



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ABCMR Record of Proceedings (cont)                                         AR20090012490



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