IN THE CASE OF:	  

		BOARD DATE:	   2 February 2010

		DOCKET NUMBER:  AR20090014240 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states that the noncommissioned officer in charge at the time was prejudiced and was not willing to help his troops.

3.  The applicant provides no additional documentation 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.  On 20 June 1985, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 18 November 1985, the applicant was assigned for duty as a grenadier with the 2d Infantry Division in the Republic of Korea.  He was promoted to specialist four, pay grade E-4, on 1 August 1986.  He departed for the United States on or about 6 November 1986.

4.  On 19 December 1986, the applicant was assigned to the 2nd Battalion, 8th Infantry Regiment, located at Fort Carson, Colorado.

5.  On 1 February 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) on or about 16 December 1988 until on or about 17 December 1988 and on or about 23 December 1988 until on or about 24 December 1988.  The punishment included 14 days of restriction and 14 days of extra duty.

6.  On 12 December 1988, the applicant accepted NJP for operating a motor vehicle while drunk.  The punishment included reduction to pay grade E-2, forfeiture of $376.00 pay per month for 2 months, and 33 days of extra duty.

7.  On 29 December 1988, the applicant was barred from reenlistment.  The commander based this action on the applicant's NJP for AWOL and for being disrespectful to a noncommissioned officer.

8. On 9 February 1989, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for a pattern of misconduct consisting of being disrespectful toward superior noncommissioned officers, being drunk while driving, and being AWOL.

9.  On 9 February 1989, the applicant consulted with counsel concerning his rights.  He waived representation by counsel and elected not to make a statement in his own behalf.

10.  On 3 March 1989, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

11.  Accordingly, on 13 March 1989, the applicant was discharged under other than honorable conditions.  He had completed 3 years, 8 months, and 21 days of creditable active duty service and had 3 days of lost time due to AWOL.

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 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 discharge should be upgraded because the noncommissioned officer in charge was prejudiced and did not want to help his troops.

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

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

4.  The available records do not contain any evidence showing that he was the subject of a noncommissioned officer's prejudice.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge should be upgraded because of any such prejudice.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20090014240



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ABCMR Record of Proceedings (cont)                                         AR20090014240



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