BOARD DATE:	 23 March 2010 

		DOCKET NUMBER:  AR20090016840 


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 an honorable discharge.

2.  The applicant states, in effect, that he was told given enough time, he could upgrade 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.  The applicant enlisted in the Regular Army on 23 February 1988.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).
3.  The applicant's record reveals a disciplinary history that includes general counseling statements on the following dates:

	a.  15 July 1988 for failure to properly perform his duties as platoon radio telephone operator (RTO);

	b.  18 July 1988 for falling out of the battalion run;

	c.  28 July 1988 for being insubordinate towards a noncommissioned officer (NCO), for failure to follow instructions, and for being relieved from road guard duty; 

	d.  15 August 1988 for failure to repair and for being apprehended by civilian authorities for littering;

	e.  19 August 1988 for failure to properly prepare for field duty;

	f.  23 August 1988 for being insubordinate towards an NCO; and

	g.  25 August 1988 for being relieved as platoon RTO.

4.  On or about 15 October 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful towards an NCO.

5.  The applicant's record also reveals his acceptance of general counseling statements on the following dates:

   a.  20 October 1988 for failure to make the company run;
   
   b.  22 November 1988 for giving beer to a minor and for failure to attend alcohol education classes; and 
   
   c.  6 December 1988 for his negative attitude.
   
6.  On 17 December 1988, the applicant was admitted to the Tri-Service Alcohol Recovery Facility Program at Tripler Army Medical Center, Hawaii for alcohol abuse.  On 3 January 1989, he was discharged as a rehabilitation failure.

7.  On 9 January 1989, the applicant accepted NJP under Article 15, UCMJ, for wrongful use of cocaine.


8.  On 18 January 1989, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for pattern of misconduct.  The reasons cited were the applicant's two Article 15s.  Coupled with numerous counseling statements that established a pattern of misconduct.

9.  On 20 January 1989, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant was advised that he could receive an under other than honorable conditions discharge and he was advised of all of his rights.  The applicant requested counsel, waived his right to be heard by a board of officers, and did not submit a statement in his own behalf.

10.  On 3 February 1989, the appropriate authority approved the elimination packet and directed the applicant receive a general, under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct - abuse of illegal drugs.  On 13 February 1989, the applicant was separated from the service, in pay grade E-1, after completing 11 months and 
21 days of creditable active service with no time lost.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a 
pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

12.  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's records show that he received two Article 15s, one for being disrespectful towards an NCO and one for illegal use of cocaine.  He failed alcohol treatment, and he had numerous general counseling statements.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.

2.  The applicant's characterization of service is commensurate with his overall record of military service.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the above, there is no basis for granting the applicant's requested relief.

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)                                         AR20090016840





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ABCMR Record of Proceedings (cont)                                         AR20090016840



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