IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019588 


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 his general discharge be upgraded to honorable.  In a letter, dated 20 November 2009, he also requests to appear before the Board.

2.  The applicant states:

* his records reflect a young Soldier who was very excited about being a Soldier
* maybe he was misled by others or got focused on family which resulted in his discharge
* he admits he was not fully aware of the family community and brotherhood he was serving but knew he was a part of something big and very important
* he wants to reenlist

3.  The applicant provides:

* two character reference letters
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* numerous service personnel records
* numerous service medical records

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 was born on 19 June 1970.  He enlisted in the Regular Army on 9 August 1988 for a period of 4 years.  He successfully completed basic training, advanced individual training, and basic airborne training.  He was awarded military occupational specialty 76Y (unit supply specialist).

3.  Between 25 January 1989 and 29 November 1989, the applicant was counseled on numerous occasions for various infractions which included failing room inspection, missing formations, under age drinking, having alcoholic beverages in the barracks, and failing to follow instructions. 

4.  On 3 December 1989, nonjudicial punishment was imposed against the applicant for wrongfully appropriating military property.  His punishment consisted of a forfeiture of pay (suspended), restriction, and extra duty.

5.  On 1 February 1990, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 21 February 1990, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The unit commander cited the applicant's extensive pattern of disobedience, irresponsibility, immaturity, poor judgment, and lack of ethics crucial to a military organization.

7.  On 26 February 1990, the applicant consulted with counsel and acknowledged notification of his pending separation.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf; however, this statement is not available.




8.  On 20 March 1990, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
9.  Accordingly, the applicant was discharged with a general discharge on 
30 March 1990 under the provisions of Army Regulation 635-200, chapter 
13, for unsatisfactory performance.  He had served a total of 1 year, 7 months, and 22 days of creditable active service.  

10.  The applicant provided two character reference letters from his sister and pastor.  They attest the applicant is committed to his family, faith, and love of his country, he has a positive attitude and strong disposition in the face of adversity, he is a strong willed young man, and that he would be a strong asset to the military.

11.  On 10 October 1995, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

12.  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.

13.  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.  

14.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  It further states that the Director or the ABCMR may grant a formal hearing whenever justice requires.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was young, he was 18 years old when he enlisted in the Regular Army and he completed basic training, advanced individual training, and basic airborne training. 

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.    

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  The applicant's record of service included two nonjudicial punishments.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

6.  The applicant’s request to appear before the Board was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20090019588



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ABCMR Record of Proceedings (cont)                                         AR20090019588



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