IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20090018440 


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 an upgrade of his general under honorable conditions discharge to fully honorable.

2.  The applicant states he wants to move on with life and do more for himself, his family, his employer, and his country.  He wants to take the life lessons, training, maturity, education, and his management skills to enlist in the Army National Guard.  He was only 18 years of age at the time of his discharge.  He was a good field Soldier but had issues.  They were minor issues and had been resolved.  He now wants to redeem himself and do the best he can do. 

3.  The applicant provides a copy of his resume.

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 records show he was born on 10 August 1974 and enlisted in the Regular Army at 18 years of age on 10 September 1992.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  His records also show he was awarded the Army Achievement Medal, Army Service Ribbon, National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  His records contain multiple counseling statements by different members of his chain of command for various infractions including failure to be at his appointed place of duty, multiple instances of dishonored or bad checks, failure to be prepared for inspection, failure to follow instructions, failure to return property or repay debt, and other misconduct.

5.  On 10 January 1994, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for uttering several checks and dishonorably failing to maintain sufficient funds.

6.  On 3 March 1994, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  Specifically, he cited his various instances of failure to pay debt, writing bad checks, and failure to report to his appointed place of duty.  The immediate commander recommended a general discharge.

7.  On 3 March 1994, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board or personal appearance before an administrative separation board.  He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 3 March 1994, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for a pattern of misconduct.

9.  On 9 March 1994, his intermediate commander recommended approval of the discharge with the issuance of an under honorable conditions character of service.

10.  On 15 March 1994, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be issued a general under honorable conditions discharge.  Accordingly, the applicant was discharged on 29 March 1994.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a general under honorable conditions character of service.  This form confirms he completed a total of 1 year, 6 months, and 6 days of creditable military service.

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

13.  He provides a copy of his resume. 

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct - commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

15.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct for various infractions ranging from failure to follow instructions and failing to report to writing bad/dishonored checks and/or failing to pay his debts.  As a result, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the underlying reason for his discharge was his misconduct.

3.  He was 18 years of age at the time of his enlistment and 19 years of age at the time of his discharge.  However, he was not any less mature than other Soldiers who successfully completed their enlistment.  Additionally, there is no indication his pattern of misconduct was caused by his age.

4.  His desire to join the Army National Guard is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant received the appropriate character of service and he provided no evidence that shows this character is in error or unjust.  Therefore, he is not entitled to 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)                                         AR20090018440



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ABCMR Record of Proceedings (cont)                                         AR20090018440



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