BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014150 


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 honorable.

2.  The applicant states that it has been over 10 years since his separation from the military.  He is not proud of his early release but does not blame the military for his own actions.  He knows that he hung out with some bad Solders; however, he does not blame those Soldiers for his bad actions.  During the past 10 years, he has been working and going to community college.  As a single parent, it has been hard.  He has worked as a delivery driver for 2 years with a fabric company; as a merchandiser for 4 years with the Coca Cola Company; as a salesman, driver, and as a merchandiser for 5 years with Frito-Lay.  Last year, the applicant started his own trucking company, but things slowed economically and he was forced to close down.  He has no criminal record or outstanding tickets and he asks that the Board grant him an honorable discharge.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 10 October 1990, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  He was subsequently assigned to the Federal Republic of Germany.

3.  On 10 April 1992, the applicant was promoted to specialist, pay grade E-4.

4.  On 24 July 1992, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 2 days.  His punishment included reduction to pay grade E-3 (suspended), a forfeiture of $242.00 pay for 1 month, and 14 days of restriction and extra duty.

5.  On 20 August 1992, the applicant was barred from reenlistment based on his previous NJP.

6.  On 24 February 1993, a mental status evaluation determined the applicant's behavior was normal.  He was fully alert and oriented and displayed a mildly anxious mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

7.  On 10 March 1993, the applicant received NJP for being AWOL for 11 days.  His punishment included reduction to pay grade E-2, a forfeiture of $456.00 pay for 2 months (suspended), and 45 days of restriction and extra duty.

8.  On 16 April 1993, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.

9.  On 21 April 1993, the applicant consulted with counsel, and elected to make a statement in his own behalf.  In his statement, he contended that he had served his country with honor, dignity and pride.  He tried to do his duties to the utmost of his abilities but felt it was time for him to move on and to pursue his educational goals.  In order to achieve his goals, he needed an honorable discharge.

10.  On 30 April 1993, the appropriate authority approved the recommendation for separation and directed that he be issued a General Discharge Certificate.  He further directed that the applicant not be transferred to the Individual Ready Reserve.

11.  Accordingly, he was discharged under honorable conditions on 10 May 1993.  He had completed 2 year, 6 months and 17 days of creditable active service.

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

13.  Army Regulation 635-200 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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has been working and going to community college which, as a single parent, has not been easy. Based on his efforts, he requests that his general discharge be upgraded to honorable.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.



3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case. 

4.  The applicant’s claim of good post-service conduct was considered.  However, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  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 the aforementioned requirement.

6.  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)                                         AR20090014150



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ABCMR Record of Proceedings (cont)                                         AR20090014150



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