IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100011596 


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 under honorable conditions.

2.  The applicant states it has been over 15 years since he was discharged from the Army and he has since grown and matured.  The current character of service affects his job opportunities and ability to provide for his family.  

3.  The applicant did not provide any additional documentary evidence. 

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 records show he enlisted in the Regular Army on 6 September 1989.  He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3.  

3.  The applicant’s records also show he served in Germany from on or about 2 January 1990 to on or about 2 May 1992.  

4.  The applicant’s records further show he was awarded the Army Service Ribbon, the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  His records reveal an extensive history of counseling by several members of his chain of command for various infractions to include being disrespectful, loss of a military identification card and failing to report the loss, loss of his room keys, leaving his room unsecured, leaving his weapon unsecured, disobeying lawful orders, threatening another Soldier, sleeping on radio watch, failing to follow instructions, failure to repair, lack of motivation and subsequent relief from duties, missing formation, violating restriction, and several other infractions. 

6.  On 5 March 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 28 June 1991, for failing to go at the time prescribed to his appointed place of duty
* On 15 November 1991, for being absent without authority (AWOL) from 8 to 10 September 1991
* On 6 December 1991, for violating restriction

7.  On 30 March 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for a pattern of misconduct.  The immediate commander cited the applicant's extensive history of misconduct and his failure to respond to counseling, and he determined that his continued presence was detrimental to himself, the unit, and the Army.  He further recommended a general discharge.

8.  On 30 March 1992, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived a personal appearance before an administrative separation board and elected not to submit a statement on his own behalf.

9.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He requested consideration of his case by an administrative separation board, a personal appearance before an administrative separation board before, and elected to submit a statement on his own behalf (a copy of his statement is not available for review with this case).  However, having not completed at last 6 years of service, he was ineligible for an administrative separation board. 

10.  On 3 April 1992, his immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander again cited the applicant's prior misconduct and recommended a general discharge.

11.  On 8 April 1992, his intermediate commander recommended approval of the applicant's discharge with the issuance of a general discharge.

12.  On 21 April 1992, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of a pattern of misconduct and directed he be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 5 May 1992. 

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - a pattern of misconduct with an under honorable conditions (general) character of service.  This form further confirms he completed 2 years, 7 months, and 28 days of creditable military service and he had 2 days of lost time.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 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 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  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 that his general discharge should be upgraded.

2.  The evidence of record shows the applicant had an extensive history of disciplinary problems and/or misconduct that included three instances of NJP and that he failed to respond to counseling.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.

4.  The Army has never had a policy that calls for an automatic upgrade of a discharge as a result of the passage of time.  Additionally, the ABCMR does not correct records for the purpose of establishing entitlement to other programs or benefits.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a fully honorable 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)                                         AR20100011596



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ABCMR Record of Proceedings (cont)                                         AR20100011596



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