IN THE CASE OF:
BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090016242
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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).
2. The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for a pattern of misconduct. He states he only had one incident of returning late from being in town for which he received an Article 15 that also reduced him rank. He believes that any other actions that were used against him were the result of a conflict between himself and his company commander over a female Soldier they were both involved with.
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants failure to
timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army (RA) on 12 July 1985, completed training, and was awarded military occupational specialty (MOS) 36C (Wire Systems Installer).
3. On 2 June 1986 a Bar to Reenlistment action was imposed against him. No documentation of this action is of record except a notation on the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) that shows the entry "Not Recommended for Further Service 860602."
4. On 19 September 1986 the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failing to go at the time prescribed to his appointed place of duty and failing to follow a lawful order to sign in off an overnight pass at the prescribed time.
5. The Bar to Reenlistment action was reviewed on 9 October 1987. A follow on notation on his DA Form 2-1 shows the entry "Bar to Reenl [Reenlistment] Reviewed; Not Recm [Recommended] for Removal (871009)."
6. The specific facts and circumstances of the applicant's discharge processing are not contained in the available records. However, his records contain a duly constituted DD Form 214 that shows on 23 December 1987 he was discharged under honorable conditions in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct based on a pattern of misconduct.
7. Army Regulation 15185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body.
DISCUSSION AND CONCLUSIONS:
1. The applicant states his DD Form 214 shows he was discharged for a pattern of misconduct. He had only one incident of returning late from being in town for which he received punishment. He believes that any other actions that were
used against him were the result of a conflict between himself and his company commander over a female Soldier they were both involved with.
2. The applicant's official record does not contain and the applicant has not provided any documentation to explain the reason for the initial Bar to Reenlistment, the continuation of the bar, or the procedural documentation for his Army Regulation 635-200, chapter 14 separation processing.
3. However, there is evidence that the applicant was barred from reenlistment and accepted NJP for three offenses. This record would support a separation for a pattern of misconduct.
4. 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.
5. The regulations governing this Boards operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to the contrary.
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) AR20090016242
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ABCMR Record of Proceedings (cont) AR20090016242
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