IN THE CASE OF:	  

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017230 


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 that his discharge was inequitable because it was based on an isolated incident.  He explains the incident was determined to be unsatisfactory behavior after he served 24 months with no other adverse actions. The applicant states that since his separation from the military he has never been in trouble.  He adds that after 20 years he decided to re-enter the military to serve his country during its time of war.  He offers that he is currently a specialist in the military and his chain of command has great confidence in his ability to become a Noncommissioned Officer.

3.  The applicant does not provide any additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 29 August 1986.  

2.  On 19 November 1987, nonjudicial punishment (NJP) was imposed against the applicant for willfully disobeying a lawful order on two separate occasions.  His punishment consisted of an oral and written reprimand, 14 days of restriction, and 14 days of extra duty (both suspended for 90 days).

3.  On 18 March 1988, NJP was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a reduction to the rank of private/E-2, a forfeiture of $175.00 (suspended), 14 days of restriction, and 14 days of extra duty.

4.  On 13 May 1988, NJP was imposed against the applicant for absenting himself from his appointed place of duty without authority.  His punishment consisted of reduction to the private/E-1 (suspended), a forfeiture of $156.00 pay for 1 month, 14 days of restriction, and 45 days of extra duty.

5.  On 14 September 1988, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsatisfactory performance.  The commander stated the applicant was counseled by his chain of command for missing formations, not being at his appointed place of duty, substandard job performance, failure to follow instructions, and failure to pay just debts.  Additionally, he said the applicant was punished under Article 15 of the Uniform Code of Military Justice, on three separate occasions.

6.  On 14 September 1988, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, he waived his right to have his case considered by a board of officers, a personal appearance before a board of officers, and to counsel.  He also elected not to submit statements on his behalf.  The applicant acknowledged that he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  

7.  On 14 September 1988, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13 with a General Discharge Certificate.  

8.  The applicant's DD Form 214 shows he was issued a general discharge on
20 September 1988.  The applicant had completed 2 years and 22 days of creditable active service.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  On 26 February 2008, the applicant re-entered the Army.  He is currently serving in pay grade E-4.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

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 argues, in effect, that his discharge should be upgraded because it was inequitable and based on an isolated incident.  However, the available evidence shows the applicant was counseled on numerous occasions concerning missing formations, not being at his appointed place of duty, substandard job performance, failure to follow instructions, and failure to pay just debts.  Additionally, he received three Article 15s for disobeying lawful orders and for failure to be at his appointed place of duty.  Therefore, the applicant's contention that his discharge was based an isolated incident is not sufficient as a basis for upgrading his discharge.

2.  Additionally, the fact that the applicant has not been in any type of trouble since his discharge and he is currently a specialist in the military is commendable.  However, it is not a basis for upgrading his discharge.

3.  The available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The available evidence shows the applicant’s discharge accurately reflects his overall record of service.  



4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a discharge upgrade on the basis of his belief that the discharge was "inequitable."

5.  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)                                         AR20090017230



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ABCMR Record of Proceedings (cont)                                         AR20090017230



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