IN THE CASE OF:	  

		BOARD DATE:	      28 MAY 2009

		DOCKET NUMBER:  AR20090001854 


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 1991 general discharge under honorable conditions be upgraded to fully honorable.

2.  The applicant states he would like to work his way up in rank as a police officer.  He notes that looking back he wishes he could have been a better Soldier but believes he may not have been mature enough.  He states that since his discharge he has spent several years as an emergency ambulance volunteer, helped with the Hurricane Katrina victims in New Orleans and in New York following the 9-11 attack.  He states he lost 153 pounds in order to become a police officer and, while his discharge doesn’t prevent him from attaining his goal, it does raise a lot of questions.  He states that he was the top student at the police academy and indicates that a lot has changed in the 18 years since his discharge.

3.  The applicant provides copies of his Basic Law Enforcement Training Certificate, evidence that he was the Top Student Overall on the State Exam, and the certificate declaring him the 1st Responder Top Student.  He also provides a copy of his Student Course Completion Record for the Criminal Justice Standards Division which also showed that he was ranked sixth out of 11 students.

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 initially entered military service as an enlisted member of the Army National Guard in 1984 and on 14 November 1986 enlisted in the Regular Army.  He was 21 years old at the time.  By October 1987 he had been promoted to pay grade E-4 and in March 1989 he reenlisted.

3.  Between October 1989 and December 1990 the applicant accumulated three periods of absence without leave (AWOL) totaling more than 60 days of lost time.  His last period of AWOL commenced on 21 November 1990 and terminated on 17 December 1990 when he was apprehended by military authorities.

4.  On 11 January 1991 the applicant underwent a mental status evaluation.  The evaluating official noted the applicant was fully alert and oriented, that his thought process was clear, and his thought content normal.  He noted the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and cleared for any administrative action deemed appropriate by the command.

5.  On 31 January 1991 the applicant’s unit commander notified him that he was initiating actions to administratively discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c (commission of a serious offense).  The commander noted he was recommending a general discharge under honorable conditions.

6.  The applicant acknowledged receipt of the proposed separation, consulted with counsel, and waived his attendant rights.

7.  On 1 February 1991 the appropriate separation authority approved the discharge and directed the applicant be issued a general discharge under honorable conditions.

8.  On 4 February 1991 the applicant was discharged.  At the time of his separation he had accumulated almost 5 years of active Federal service and nearly 2 years of inactive service.

9.  In 1994, subsequent to the applicant’s discharge from active duty in 1991, he returned to military service as a member of the Kentucky Army National Guard.  However, on 19 February 1999, after more than 4 years of service, the applicant was discharged under honorable condition as a result of unsatisfactory participation.

10.  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 prescribes procedures for separating members for misconduct.  Specific categories include 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.

11.  Paragraph 14-12c of the same regulation specifically provided for the separation of Soldiers as a result of a commission of a serious military or civil offense if the specific circumstances of the offense warranted separation and a punitive discharge would have been authorized for the same or a closely-related offense under the Manual for Courts-Martial.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for the offense of AWOL of more than 30 days.

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

14.  In 1995 the Army Discharge Review Board denied the applicant’s petition to upgrade the characterization of his 1991 discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, it is apparent that the applicant's discharge was based on his overall performance during his period of military service.  The fact that he was given a general discharge suggests that his commander and the separation authority likely considered the applicant’s length of service when determining the characterization of service the applicant would receive.

2.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting an honorable discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request.

3.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading the characterization of one’s service.

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 the aforementioned requirement.

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.



      ___________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)                                         AR20090001854



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ABCMR Record of Proceedings (cont)                                         AR20090001854



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