BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013908 


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 general under honorable conditions discharge to fully honorable.

2.  The applicant states, in effect, that he has been out of the Army for 19 years and has tried to enlist.  He believes the past is past and that he is now more responsible for his actions.  He is now married and the father of four children and wishes to make his paperwork right so he may improve his enlistment opportunities.

3.  The applicant provides three character reference letters, dated in 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 enlisted in the Regular Army (RA) for a period of 4 years on 14 September 1988.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Hawaii from 3 January 1989 to 22 June 1990.  His awards and decorations include the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade 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 as follows:

	a.  On 20 March 1989, for neglectfully destroying by fire a mattress of a value of $96.09 on or about 17 March 1989.  His punishment consisted of 7 days of restriction and 14 days of extra duty.
 
	b.  On 20 October 1989, for being disrespectful in language toward a noncommissioned officer (NCO) on or about 25 September 1988.  His punishment consisted of a reduction to private (PVT)/E-1 (suspended until 25 January 1990), a forfeiture of $82.00 pay, 14 days of restriction, and 14 days of extra duty.

	c.  On 8 March 1990, for wrongfully using provoking words on or about 28 February 1990 and disobeying a lawful order from an NCO on or about 4 March 1990.  His punishment consisted of a reduction to private (PV2)/E-2, (suspended until 8 June 1990), a forfeiture of $189.00 pay (suspended until 8 June 1990), and 7 days of confinement in a correctional custody facility.

5.  On 20 March 1990, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his prior misconduct of destroying government property and disrespect to an NCO.  He was furnished with a copy of the bar but elected not to submit a statement in his own behalf.  The bar was ultimately approved by his battalion commander.

6.  The applicant's records contain an extensive history of counseling by several members of his chain of command for various infractions including lack of motivation, multiple instances of failure to follow instructions, failure to be prepared for inspection, lack of discipline, multiple instances of disrespect, poor performance, poor military appearance, being found asleep during radio watch, dereliction of duty, failure to make a dental appointment, and several other infractions.

7.  On 11 June 1990, 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 misconduct - pattern of misconduct.  Specifically, the immediate commander cited the applicant's insubordination, disrespect toward superiors, and overall failure to adapt to the military.

8.  On 12 June 1990, 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 and 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 on his own behalf.

9.  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.

10.  On or about 12 June 1980 [shown as 11 June 1980], the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct with the issuance of a general under honorable conditions discharge.  He recommended a waiver of the requirements for rehabilitation and indicated that further rehabilitation would not be feasible and/or would not produce a quality Soldier.

11.  On 12 June 1990, the applicant's intermediate commander recommended the applicant be separated from the Army for misconduct with the issuance of a general under honorable conditions discharge.

12.  On 12 June 1990, 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 a general under honorable conditions discharge.  Accordingly, the applicant was discharged on 26 June 1990.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated with a general under honorable conditions discharge.  This form further confirms he completed a total of 1 year, 9 months, and 13 days of creditable military service.

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

14.  The applicant submitted three character reference letters as follows:

	a.  In a letter, dated 14 July 2009, a friend of the applicant states that he has known him and his family for 12 years and has seen him mature as a father and husband.  He describes him as an honest person with high integrity and ethics.

	b.  In an undated letter, a church associate pastor describes the applicant as a faithful father, coach, and provider for his family.  He is also involved in the community and in the church. 

	c.  In a letter, dated 7 July 2009, a member of the Ohio Army National Guard comments on the applicant's hard work, friendship, and honesty.  He adds that the applicant has matured and wishes to serve his country.

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general under honorable conditions discharge should be upgraded to honorable.

2.  The evidence of record shows the applicant had a history of disciplinary problems including three instances of NJP, a bar to reenlistment, and an extensive history of negative counseling.  As a result, 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.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the underlying reason for the applicant's discharge was his misconduct.

3.  The applicant's post-service achievements and the character reference letters he submitted are noted.  However, the evidence of record shows the applicant's discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Additionally, during his administrative separation process, the applicant's rehabilitation was addressed; however, his chain of command did not deem any rehabilitation efforts a viable option given his history of misconduct.

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.



      ____________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)                                         AR20090013908



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ABCMR Record of Proceedings (cont)                                         AR20090013908



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