IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009224 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he was young and did not understand the importance of being in the military but he now understands what it is all about and he appreciates and is proud of everything the military stands for.  He goes on to state that he desires an upgrade of his discharge so that he can go to college and provide better care for his two children.

3.  The applicant provides no additional documents with 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 was born on 3 April 1981 and he enlisted in the Regular Army, on 8 February 2001, for a period of 4 years and training as a medical specialist.  He successfully completed his training and was transferred to Fort Polk, Louisiana for assignment to the 2d Armored Cavalry Regiment on 26 September 2001.

3.  On 7 December 2001, nonjudicial punishment (NJP) was imposed against the applicant for making a false official statement and failure to go to his place of duty.

4.  On 1 March 2002, NJP was imposed against him for being absent without leave from 4 January to 8 January 2002. 

5.  On 12 March 2002, the applicant was command directed to undergo a mental health evaluation at the Behavioral Health Clinic.  The examining official opined that the applicant showed no evidence of psychotic process or any major psychiatric symptoms and deemed him mentally responsible.  He further indicated that the applicant was not motivated for continued military service.

6.  On 21 August 2002, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for pattern of misconduct.  The commander cited as the bases for his recommendation the applicant’s disciplinary record, his failure to respond to numerous counseling sessions regarding his absence with the intention of missing field exercises, dereliction of duty, larceny, and repeated failure to go to his place of duty.

7.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 27 September 2002 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct.  He had served 1 year, 7 months, and 16 days of total active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 2 March 2006 citing essentially the same reasons as he has cited to this Board.  After reviewing all of the available evidence in his case, the ADRB determined his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge on 17 January 2007.

11.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although a general discharge may be issued, a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct during such a short period of service.  Additionally, the upgrade of a discharge simply for the purpose of obtaining benefits is not a sufficiently mitigating reason for an upgrade.

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)                                         AR20100009224



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ABCMR Record of Proceedings (cont)                                         AR20100009224



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