IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021320 


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 be upgraded to a fully-honorable discharge.

2.  The applicant states he is requesting an upgrade of his discharge due to bad times.  He goes on to state that in the past he did things without thinking about the consequences that come after the decision.  Since his separation from the military, two kids, and a sick mother whom he is trying his best to look after, there are not many jobs available where he is from that pay that well.  He continues by stating that he is hoping an upgrade of his discharge will make him stand out in the work force.  He further states that he has been rejected for jobs because of his discharge and he really has not had a second chance to prove himself.  He really needs to do this for himself and his family because he wants to contribute to society.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army in Atlanta, Georgia, on 24 January 2001 for a period of 4 years and training as a medical specialist.  He completed his basic training at Fort Benning, Georgia, and his advanced individual training at Fort Sam Houston, Texas, before being transferred to Fort Hood, Texas, for his first and only duty assignment.

3.  On 11 March 2002, nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty and being disrespectful in language towards a superior noncommissioned officer.

4.  On 10 June 2002, NJP was imposed against him for three specifications of failure to go to his place of duty.  He received a suspended forfeiture of pay that was subsequently vacated on 16 July 2002.

5.  The applicant was absent without leave (AWOL) from 3 September 2002 to 6 September 2002; however, the record is silent as to any punishment imposed for that offense.

6.  On 25 September 2002, NJP was imposed against him for the wrongful use of marijuana and for failure to go to his place of duty.

7.  On 12 November 2002, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, due to misconduct – commission of a serious offense.  He cited the applicant's disciplinary record, his period of AWOL, his failure to respond to repeated counseling sessions for failure to report, and disobeying orders as the basis for his recommendation.

8.  On 12 November 2002, after consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his right to appear before an administrative separation board in return for a characterization of service of no less than under honorable conditions.  He elected not to submit a statement in his own behalf.

9.  On 18 November 2002, the applicant's commander initiated formal action to separate the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, due to commission of a serious offense.  He recommended that the applicant be discharged under other than honorable conditions and the entire chain of command recommended that his request for a conditional waiver be disapproved.

10.  On 14 March 2003, the applicant submitted an unconditional waiver in which he agreed to waive consideration of his case by an administrative separation board to save the government the time and expense of conducting the board and because he did not want to continue his service.  He also stated that he desired favorable consideration of a general discharge in return for his unconditional waiver, even though he knew that the separation authority was not obligated to do so.

11.  On 26 March 2003, the appropriate authority (a major general) approved the request for discharge and directed that the applicant be discharged under other than honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions on 23 April 2003 under the provisions of Army Regulation 635-200, paragraph 
14-12c(2) for misconduct.  He had served 2 years, 2 months, and 27 days of total active service.

13.  On 23 October 2003, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that he was experiencing problems at the time that involved his mother being sick with cancer and his being unable to be transferred closer to home.  He also stated that he had a new family and wanted a new start.  On 30 June 2004, the ADRB, in a three-to-two vote, voted to upgrade his discharge to a general discharge.  In a majority vote, the ADRB determined that the narrative reason for his separation should not be changed.  Accordingly, his discharge was upgraded to a general discharge.

14.  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 include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions is normally considered appropriate; however, a general or honorable discharge may be furnished if deemed appropriate.

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.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Notwithstanding the actions by the ADRB, the type of discharge directed and the reasons for the discharge were appropriate considering all of the available facts of the case.

3.  The applicant's contentions and overall record of service have been considered and they do not rise to the level of a fully-honorable discharge.  Additionally, discharges are never upgraded simply to afford individuals better employment opportunities.

4.  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)                                         AR20090021320



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ABCMR Record of Proceedings (cont)                                         AR20090021320



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