IN THE CASE OF:	  

		BOARD DATE:	       16 APRIL 2009

		DOCKET NUMBER:  AR20090001076 


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, in effect, that his 1986 discharge under honorable conditions (general) be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was told that the nature of his discharge warranted an automatic upgrade.  He states that he has a legitimate service-connected injury which is what got him into trouble.  

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier for a period of 3 years on 3 May 1984.  The applicant successfully completed training and was assigned to Fort Stewart, Georgia.  By May 1985 he had been promoted to pay grade E-3.

3.  Between July and November 1985 the applicant was punished four times under Article 15 of the Uniform Code of Military Justice (UCMJ) for various offenses including failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL).  As a result of his UCMJ actions the applicant was reduced to pay grade E-1.  Between June and November 1985 the applicant was counseled on several occasions regarding his duty performance, debt problems, and lack of motivation.  In October 1985 a local bar to reenlistment was imposed against the applicant.

4.  On 18 November 1985 the applicant was notified by his unit commander that he (the unit commander) was initiating actions to separate the applicant from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 14, for a pattern of misconduct.  The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights.

5.  The appropriate separation authority approved the unit commander’s recommendation that the applicant be administratively discharged and directed that the applicant be issued a general, under honorable conditions discharge.

6.  On 3 January 1986 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, as a result of a pattern of misconduct.  He had completed 1 year, 8 months, and 1 day of active Federal service.

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Paragraph 14-12b specifically provides for separation as a result of a pattern of misconduct.  Action will be taken to separate a member 

for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

9.  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 contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge and that he was told that the nature of his discharge warranted an automatic upgrade.  He also argues that a service medical condition contributed to his trouble.

2.  The evidence of record confirms the applicant's unit commander notified him of the contemplated separation action and that he consulted legal counsel.  It further shows that the applicant was advised of the basis for the contemplated separation action and its possible effects.  He presented no evidence that there were any mitigating circumstance which warranted his retention or that an honorable discharge was appropriate.

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

4.  The applicant's record of service included multiple records of nonjudical punishments, several counseling statements, and a local bar to reenlistment.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  There is no evidence, and the applicant has not provided any, that there were any medical issues which contributed to his record of indiscipline.  It is noted that the applicant did successfully complete training and had been promoted to pay grade E-3.  Such evidence suggests the applicant was capable of fully honorable service.

6.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy to automatically upgrade an individual's discharge based upon the passage of time.  Therefore, there is no basis for granting the applicant's requested relief on this issue.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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.



      _________XXX_____________
               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)                                         AR20090001076



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001076



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1