IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012738 


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 upgrade of his general discharge to an honorable discharge.  

2.  The applicant states he was unjustly treated due to the alleged violation of rules and his brother's murder.

3.  The applicant provides no additional documentation.

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 17 March 1987 and he successfully completed basic and advanced individual training.  He was awarded military occupational specialty 16R (VULCAN Crewmember).
3.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates and reasons:

* 30 October 1987, for being late for formation
* 30 November 1987, for poor duty performance and uniform appearance
* 14 December 1987, for failing to follow instructions
* 16 December 1987, for failing to follow instructions 
* 5 January 1988, for failing to pay phone bill
* 21 January 1988, for failing to maintain sufficient funds in checking account
* 28 March 1988, for disobeying a lawful order
* 5 April 1988, for failing to repair and overdue deferred payment
* 13 April 1988, for poor duty performance  and uniform appearance
* 14 April 1988, for extra training on proper way of shaving, ironing uniforms, and shining of boots
* 15 April 1988, for missing extra training
* 19 April 1988, for missing formation
* 20 April 1988, for failing to pay just debts
* 21 April 1988, for failing to be at the time prescribed at his appointed place of duty and disobeying a lawful order

4.  On 22 April 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at the time prescribed to his appointed place of duty and for disobeying a lawful order from a superior noncommissioned officer (NCO).

5.  The applicant's record reveals an additional disciplinary history that includes his acceptance of general counseling statements on the following dates and reasons:

* 5 May 1988, for failing to repair
* 17 May 1988, for failing to shave and being late for physical training formation
* 20 May 1988, for not being at his appointed place of duty and failing to pay debts
* 23 May 1988, for not being at his appointed place of duty
* 1 June 1988, for failing to pay just debts and follow instructions

6.  On 7 June 1988, the applicant accepted NJP under Article 15, UCMJ, for failing to be at his appointed place of duty.

7.  The applicant's record reveals further disciplinary history that includes his acceptance of general counseling statements on the following dates and reasons:

* 6 July 1988, for disobeying a lawful order from an NCO
* 7 July 1988, for failing to have valid proof of vehicle insurance
* 11 July 1988, for missing formation
* 14 July 1988, for not being at his appointed place of duty, failing to pay debts, and disobeying a lawful order

8.  On 20 July 1988, the applicant accepted NJP under Article 15, UCMJ, for wrongfully using marijuana.

9.  On 15 August 1988, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.  The reasons cited by the commander were the applicant testing positive for marijuana, his missing and lateness for formations, and having numerous letters of indebtedness.

10.  On 16 August 1988, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  The applicant requested counsel, waived his right to an administrative board, and elected not to submit a statement in his own behalf.

11.  On 19 August 1988, the separation authority approved the elimination packet under the provisions of Army Regulation 635-200, chapter 14-12, for misconduct and directed the applicant receive a general discharge.  On 26 August 1988, the applicant was discharged from the service, in pay grade E-1, after completing
1 year, 5 month, and 10 days of total active service.

12.  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 conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

13.  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 he was unjustly treated by his command due to alleged violation of rules and his brother's murder.  It is unfortunate the applicant's brother was murdered; however, there is no evidence and the applicant has not provided any evidence that shows he was treated unjustly by his command or that the death of his brother was the cause of his misconduct.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he was administered three Article 15 actions, he tested positive for marijuana, and he had numerous negative general counseling for a myriad of reasons.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for issuance of an honorable discharge.

5.  in view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100012738



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ABCMR Record of Proceedings (cont)                                         AR20100012738



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