BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100000029 


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 under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states he was kicked out of school for misconduct and he accepts this.  However, he should not have been kicked out of the service.  The applicant adds he reenlisted and served honorably.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 record shows he enlisted in the Regular Army for 3 years on 18 July 1986.  He served 2 years, 11 months, and 17 days on this enlistment and reenlisted on 5 July 1989 for an additional 4 years.

3.  On 30 April 1990, nonjudicial punishment (NJP) was imposed against the applicant for being absent from his appointed place of duty.  His punishment consisted of reduction to the grade of E-3, forfeiture of $224.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  On 9 May 1990, NJP was imposed against the applicant for breaking company restriction.  His punishment consisted of reduction to the grade of E-2, forfeiture of $216.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  The unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  He cited the applicant's numerous counseling statements, two NJP's, total lack of motivation, blatant disregard for authority and orders, and his display of an I-don't-care attitude as justification for his recommendation.

6.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, the applicant elected to submit a statement on his behalf.  However, the statement is not included in the applicant's separation packet.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. 
However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 29 May 1990, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  He directed that the applicant be furnished a General Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 5 June 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct with a characterization of service of general under honorable conditions.  The applicant was credited with completing 3 years, 10 months, and 18 days of active service.

9.  There is no indication in the record that the applicant applied to the ADRB for an upgrade of his discharge within the 15-year statute of limitations of that board.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  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 available evidence 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 service.

2.  Although the applicant argues he reenlisted and served honorably, his record of service shows he received numerous counseling statements and two NJP's.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  The applicant must provide evidence to prove that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant failed to provide such evidence.


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)                                         AR20100000029



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ABCMR Record of Proceedings (cont)                                         AR20100000029



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