IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016741 


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 he would like his GD upgraded to an HD because he has no benefits and at the time he was young and didn’t understand the long term outcome.  He also states he was not offered any professional advice.

3.  The applicant provides no documentary evidence 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.  The applicant’s record shows he enlisted in the Regular Army on 20 June 1991.  He was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was advanced to the rank/grade of specialist four (SP4)/E-4 on 15 September 1993 and that this is the highest rank/grade he attained while serving on active duty.  Item 9 (Awards, Decorations, and Campaigns) shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Army Service Ribbon, Overseas Service Medal, and Driver and Mechanic Badge with Driver-W Bar.  His record documents no acts of valor or significant achievement.

4.  Between 13 December 1993 and 13 February 1994, the applicant received four general counseling statements for substandard performance and domestic violence against his wife.

5.  On 1 March 1994, the applicant received a letter of reprimand for physical assault on his wife.  Between 4 March and 11 March 1994 the applicant received two general counseling statements for been absent from his appointed place of duty.

6.  On 14 April 1994, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 86, Uniform code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on or about 11 March 1994.  His punishment included a reduction to the rank/grade of private first class (PFC)/E3, and 14 days of extra duty.

7.  Between 31 May 1994 and 23 June 1994, the applicant received four general counseling statements for travelling out of the prescribed radius without a pass, failing to pay spousal benefits, unauthorized usage of a military phone, and failing to make APFT formations.

8.  On 2 August 1994, the unit commander notified the applicant he was initiating separation action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The unit commander cited the applicant’s repeated misconduct to include, but not limited to numerous occasions of missing formations, assault, and misuse of government services as the basis for the action.



9.  On 2 August 1994, the applicant was advised of his rights and he completed a statement waiving his right to a personal appearance before a board of officers 
and he elected to submit a statement in his own behalf.  He later submitted a memorandum to his unit commander indicating he had no statement in his behalf.

10. On 11 August 1994, the separation authority approved the applicant’s separation and directed he receive a General Discharge Certificate.  On
19 August 1994 the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct.  He completed a total of 3 years and 2 months net active service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge (HD) may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.

13.  Paragraph 3-7a of the same regulation provides that an HD 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's contentions that he served his country, he was not properly investigated nor given any legal advice, and that he was very young and did not 

understand the long term outcome was carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  He acknowledged that he was advised by legal counsel of the basis for his separation, its effects, and the prejudice he may encounter in civilian life if he received a general discharge.

3.  Record show that the applicant was 20 years of age at the time of his offences.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of NJP, numerous counseling, and a letter of reprimand.  As a result, his record was not sufficiently meritorious to support the issue of an HD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date

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 this requirement

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)                                         AR20090016741



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ABCMR Record of Proceedings (cont)                                         AR20090016741



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