IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007729 


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.

2.  The applicant states:

* He believes his service warrants an honorable discharge
* His continued life service in the civilian world has been exemplary

3.  The applicant provides no documentary evidence in support of 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 on 10 May 1984 for a period of 
3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 94B (food service specialist).  On 7 October 1985, he extended his enlistment for a period of 
19 months.  The applicant was honorably discharged on 12 June 1988 for immediate reenlistment.  He reenlisted on 13 June 1988 for a period of 3 years.
 
3.  Records show the applicant was removed from the overweight program on 
4 December 1989.  

4.  On 24 July 1990, nonjudicial punishment (NJP) was imposed against the applicant for three specifications of larceny.  His punishment consisted of a reduction to E-3 and a forfeiture of pay (suspended).

5.  Records show the applicant was placed back on the overweight program on 
2 August 1990. 

6.  On 16 November 1990, NJP was imposed against the applicant for larceny.  His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction, and extra duty.

7.  On 3 January 1991, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for misconduct - pattern of misconduct.  The unit commander cited the applicant's pattern of misconduct as the reason for the separation action.

8.  On 3 January 1991, the applicant submitted a request for a conditional waiver.  He consulted with counsel, he waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than honorable, and he elected to submit a statement on his own behalf.  In summary, he described his military career and indicated he made some mistakes for which he was deeply sorry.  He also provided statements of support from fellow Soldiers and copies of his service personnel records.   

9.  On 23 January 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  Accordingly, the applicant was separated with a general discharge on 
22 February 1991 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct - pattern of misconduct.  He had served a total of 6 years, 9 months, and 13 days of creditable active service.
11.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

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.

DISCUSSION AND CONCLUSIONS:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant's record of service during his last enlistment included overweight issues and two NJPs for larceny.  As a result, his record 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.

3.  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.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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)                                         AR20100007729





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ABCMR Record of Proceedings (cont)                                         AR20100007729



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