IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090016203 


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 be upgraded to an honorable discharge.

2.  The applicant states that he made a mistake when he was young and that he did not appreciate what the Army was trying to do for him until he got older.  He states that he now gives the Army all the credit it deserves.  He admits it was a serious mistake and would like forgiveness from the Army in the form of an upgrade of his discharge.

3.  The applicant provides no additional documentation.

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 28 August 1990, the applicant enlisted in the Regular Army in Memphis, Tennessee, for 3 years in the pay grade of E-1.  He successfully completed his training as a cannon crewman and he was promoted to the pay grade of E-2 on 1 March 1991.

3.  The applicant's records show that he was counseled on seven separate occasions between 6 February 1991 and 20 September 1991 regarding his need to improve his duty performance, appearance, adaptability, motivation, responsibility, physical training, and general knowledge.  He was also counseled for uttering a check that was dishonored.  During each counseling session, he was informed of the effect of a less than fully honorable discharge and the prejudice that he might encounter in civilian life if he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13 or chapter 14.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 23 September 1991 for being absent without leave (AWOL) from 5 August 1991 until 30 August 1991.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $376.00 per month for 2 months, 45 days of restriction, and 45 days of extra duty.

5.  On 27 September 1991, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  The commander cited his numerous counselings and the NJP that was imposed against him for being AWOL as a basis for the recommendation for discharge.  The applicant acknowledged receipt of the notification and after consulting with counsel he elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on 2 October 1991 and directed the issuance of a General Discharge Certificate.  Accordingly, on 22 October 1991, the applicant was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He had completed 1 year, 1 month, and 1 day of net active service during this period.  He was furnished a General Discharge Certificate.

7.  On 17 November 1991, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to an honorable discharge and for a change to his narrative reason for discharge.  On 7 March 1994, the ADRB granted his request for a change to his narrative reason for discharge.  However, that board denied his request for an upgrade of his discharge from general to fully honorable.

8.  On 13 June 1994, the applicant was furnished a DD Form 215 (Correction of DD Form 214, Certificate of Release or Discharge from Active Duty) amending his DD Form 214 to show his narrative reason for separation as misconduct instead of misconduct – commission of a serious offense.

9.  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, 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  Paragraph 3-7b of Army Regulation 635-200 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.

2.  His contentions have been noted.  However, the applicant's service was not fully honorable.

3.  The applicant's records show that he was counseled on seven separate occasions regarding his need to improve his duty performance, appearance, adaptability, motivation, responsibility, physical training, and general knowledge.  He was also counseled for uttering a check that was dishonored and he had NJP imposed against him for being AWOL from 5 August 1991 until 30 August 1991.

4.  Considering the applicant's numerous acts of indiscipline, it does not appear that the type of discharge that he received is too harsh and the character of service that he received appropriately reflects his overall record of service.

5.  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.

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)                                         AR20090016203



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ABCMR Record of Proceedings (cont)                                         AR20090016203



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