IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100011004 


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 an honorable discharge.

2.  The applicant states, in effect, he applied for an upgrade 1 year after he was discharged and it was disapproved.  Five years after his discharge he joined the U.S. Army Reserve (USAR).  He states since joining the USAR he has been a valued Soldier and acquired several certifications for his military occupational specialty (MOS).  He states he is currently serving on active duty in MOS of 74D (Chemical Operations Specialist).  He states he has had no negative counseling's from his unit or negative actions in his civilian life since his discharge.  He would like his discharge upgraded to honorable.  He also states he takes responsibility for his actions, past and present, and does not regret anything.

3.  The applicant provides no additional 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's military personnel records show he enlisted in the Regular Army on 19 September 2000 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded MOS 55B (Ammunition Specialist).

3.  On 24 May 2001, the applicant was assigned to the 23rd Ordnance Company in Miesau, Germany.

4.  The applicant's records contain 17 DA Forms 4856 (Developmental Counseling Forms), dated between 16 January and 16 December 2002 that document he was counseled for:

* being absent without leave (AWOL)
* being disrespectful towards an officer
* making false statements
* disobeying a lawful order/directive
* being late for duty

5.  During eight of the above formal counseling sessions the applicant was advised that continued misconduct could be cause for action to involuntarily separate him from the service under the provisions of Chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He was also advised that such a separation could result in a less than honorable discharge and as a result he might be disqualified for future veteran's benefits and benefits under State and Federal laws.

6.  On 10 December 2002, the applicant received a mental status evaluation.  The examiner found the applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

7.  On 28 January 2003, the applicant's commander notified him he was initiating action to separate him under the provisions of Chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  The commander stated he was recommending that the applicant be issued a general discharge under honorable conditions.  
8.  The commander stated the reasons for initiating the separation action were the applicant's:

* failure to follow orders
* being disrespectful towards a noncommissioned officer
* failure to comply with Army standards

9.  The commander advised the applicant of his right to:

* consult with counsel
* submit written statements in his own behalf
* obtain copies of documents that would be sent to the separation authority

10.  The commander further advised the applicant that he may waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority approved his discharge.  The commander advised the applicant that failure to respond to the letter of notification constituted a waiver of his rights.  

11.  On 29 January 2002, the applicant acknowledged receipt of the separation notification and submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge.   The applicant indicated that he was submitting statements in his own behalf.  However, the statements are not in the available records.

12.  A Judge Advocate General's Corps captain countersigned the applicant's statement and indicating he had counseled the applicant concerning the basis for his contemplated separation action and its effects, the rights available to him, and the ability to waive these rights.

13.  On 29 January 2002, the applicant's commander recommended that he be discharged due to a pattern of misconduct with a general discharge.  The commander stated he did not believe it was feasible or appropriate to accomplish any other disposition of the applicant's case because the applicant showed no potential for further service.

14.  On 3 February 2003, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct and directed that the applicant be issued a general discharge.
15.  On 11 June 2008, the applicant was discharged under the provisions of Chapter 14 of Army Regulation 635-200 due to misconduct with a general discharge.  He had completed 2 years, 5 months, and 8 days of active service and he had 4 days of time lost.

16.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 May 2005, the ADRB denied the applicant's request for upgrade.  The ADRB determined the applicant's discharge was proper and equitable and that the discharge was properly characterized.

17.  On 11 February 2008, the applicant enlisted in the USAR for a period of 
6 years and training in MOS 74D.  He was awarded this MOS effective 
4 November 2008.  He was ordered to active duty effective 18 January 2010 for a period of 365 days, he was assigned to the U.S. Army Finance Command, Fort Benjamin Harrison, IN.

18.  Army Regulation 635-200, paragraph 1-16 states when a Soldier's conduct or performance becomes unacceptable, the command will ensure that a responsible official formally notifies the Soldier of his deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated.  The number and frequency of formal counseling sessions are discretionary.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

20.  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 applicant contends his general discharge should be upgraded to an honorable discharge.  He contends since he has joined the USAR he has had no negative counseling from his unit and no negative actions in his civilian life since he was discharged.  

2.  The applicant received formal counseling concerning his deficiencies 17 times in a 1 year period.  On eight of these occasions he was advised of the consequences of his continued misconduct.  This pattern of misconduct clearly shows he did not meet the standards of acceptable conduct and performance of duty for military personnel.  

3.  It is apparent the applicant's commander considered mitigating circumstances concerning his discharge in that he recommended a general discharge instead of an under other than honorable conditions discharge that was normally considered appropriate under the provisions of Chapter 14.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

5.  The applicant's post service is noted including his service in the USAR.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge.  The ABCMR does not upgrade discharges based on the passage of time.

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)                                         AR20100011004



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ABCMR Record of Proceedings (cont)                                         AR20100011004



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