IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100012052 


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, in effect, that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states that at the time he enlisted he had come from a deprived background, that his father was an abusive alcoholic, and that he did not have a good childhood which caused him to have attitude problems.  He goes on to state that the Army gave him structure that he never had; however, his immaturity and bad attitude toward life caused him to ignore the fact that he had an opportunity to change his life.  He also states that he is doing everything he can to make sure his daughter has a stable life and understands the importance of service to country.

3.  The applicant provides a one-page letter explaining his application, three third-party letters of support, and 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 enlisted in the Regular Army on 27 February 1985 for a period of 3 years and training as a power generation equipment repairer.  He completed his training and was transferred to Fort Knox, Kentucky, for his first and only duty assignment.

3.  During the period 5 September 1985 through 14 April 1986, nonjudicial punishment (NJP) was imposed against the applicant on at least three occasions for disobeying a lawful order, being drunk and disorderly, and failure to repair.

4.  On 7 May 1986, the applicant's commander initiated action to bar the applicant from reenlistment.  He cites as the basis for his recommendation the applicant's disciplinary record, his failure to respond to numerous counseling sessions, his demonstrated apathy and recalcitrance, his untrainability, and his uncooperative attitude.  The applicant declined the opportunity to submit a statement in his behalf and the appropriate authority approved the bar to reenlistment on 20 May 1986.

5.  On 12 August 1986, NJP was imposed against him for being disrespectful in language toward a superior noncommissioned officer (NCO), two specifications of disobeying lawful orders from NCO's, and failure to go to his place of duty.

6.  On 27 October 1986, the applicant's commander notified him that he was initiating action to separate him from the service due to his continued misconduct and unsatisfactory performance.  After consulting with counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on 12 November 1986 and directed that he be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 1 December 1986 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for misconduct – pattern of misconduct.  He served 1 year, 9 months, and 5 days of total active service.

9.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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.

11.  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's administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to have jeopardized his rights.  Accordingly, the type of discharge and the reasons were therefore appropriate considering the facts of the case and his overall record of service.

2.  The applicant's contentions were considered.  However, his service does not rise to the level of honorable service when compared to his numerous acts of misconduct and overall poor performance.  He was given the opportunity to serve successfully and end his service honorably and apparently he failed to do so.  Accordingly, there appears no basis to warrant an upgrade of his discharge.

3.  While the applicant is to be commended for his efforts to provide a better life for his child, that in itself is not sufficient to serve as a basis to upgrade his discharge when his overall record of service is considered.

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)                                         AR20100012052



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ABCMR Record of Proceedings (cont)                                         AR20100012052



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