IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20100009006 


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 an upgrade of his general discharge. 

2.  He states he wants the Board to reevaluate the circumstances under which his discharge was made.  On 1 November 1989, he was told his brother had 
3 months to live because he had Berger’s Disease.  He was advised by his commander he would be out of the Army within 30 days.  The American Red Cross did all the necessary paperwork to get him out, but he wanted to remain in the Army.  At the time he was on levy for Germany.  His brother died after 14 years.  He got into trouble at the end of his period of service because of stress.   

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 military records show he enlisted in the Regular Army in pay grade E-2 on 16 September 1988, for 4 years.  He completed training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He was advanced to pay grade E-3 on 30 January 1989.

3.  He received monthly counseling from December 1988 to October 1989 for failing to be at his place of duty, poor job performance, continuously being late for formation, a poor appearance, and for writing bad checks.

4.  On 5 September 1989, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to formation on time on 25 August 1989.  His punishment consisted of a reduction to pay grade E-2, a forfeiture of pay for 1 month, and 14 days of restriction and extra duty (suspended).  The suspended pay, restriction, and extra duty were vacated on 12 September 1989, due to his failure to go to his appointed place of duty on 6 September 1989.

5.  On 16 November 1989, he was advised by his company commander of action being initiated to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Separation), paragraph 
14-12b, with a general discharge, for misconduct-pattern of misconduct.  The company commander stated the reasons for the proposed action was the Article 15 where he was given a suspended punishment which was later vacated and receipt of numerous derogatory counselings which displayed a pattern of misconduct.

6.  On 16 November 1989, after consulting with counsel, the applicant acknowledged receipt of the commander's notification.  He acknowledged he understood he could be issued an under other than honorable conditions discharge, and deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all Federal and State benefits.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 17 November 1989, the applicant's company commander recommended that he be separated prior to the expiration of his term of service pursuant to paragraph 14-12b of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  

8.  On 20 November 1989, the separation authority approved the separation recommendation and directed that he be issued a general discharge.

9.  On 24 November 1989, he was separated in pay grade E-2 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct with a general discharge.  He was credited with completing 1 year, 2 months, and 9 days of net active service.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, then in effect, 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 included 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.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant demonstrated a pattern of misconduct which was evident by his record of numerous derogatory counselings and a non-judicial punishment which consisted of suspended punishment which was later vacated.    

2.  The evidence shows he was well aware of the reasons for his discharge at the time he was separated.   A discharge under other than honorable conditions was normally appropriate.  It appears his chain of command considered his overall record when he was issued a general discharge.  His repeated misconduct diminished the quality of his service below that meriting a fully honorable discharge.  


3.  The applicant's contentions have been considered; however, he has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  He also has provided neither evidence nor a convincing argument to show he was having family problems or his discharge was unjust.  

4.  In the absence to evidence to the contrary, it is concluded his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

5.  In view of the circumstances in this case he is not entitled to an upgrade of his general discharge.  

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)                                         AR20100009006



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ABCMR Record of Proceedings (cont)                                         AR20100009006



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