BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012873 


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 2007 general discharge to an honorable discharge to qualify for Montgomery GI Bill (MGIB) benefits.

2.  He makes no further statement and provides no additional 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 military records show he enlisted in the Tennessee Army National Guard (TNARNG) in pay grade E-3 on 13 February 2003.  Section VII (Termination of Entitlement) of his DA Form 5435-R (Statement of Understanding - The Selected Reserve MGIB), dated 13 February 2003, shows he placed his initials in the block indicating he understood that his entitlement to educational assistance would be terminated if he was separated for unsatisfactory participation.

3.  He was released from the TNARNG in pay grade E-1 on 1 November 2005 for unsatisfactory participation with a general under honorable conditions discharge and he was transferred to the U.S. Army Reserve (Reinforcement).

4.  He enlisted in the Regular Army in pay grade E-3 on 5 October 2006.  Paragraph 5 of his DD Form 2366 (MGIB Act of 1984), dated 11 September 2006, shows he acknowledged with his signature that he must receive an honorable discharge for service establishing entitlement to the MGIB and did not include "under honorable conditions."

5.  He received counseling on 19 October 2006, 6 November 2006, 4 December 2006, and 5 January 2007 for his substandard performance on the Army Physical Fitness Test (APFT); on 17 January 2007 for failing to report during an accountability formation; on 19 January 2007 for failing to go to his appointed place of duty and insubordinate conduct towards a noncommissioned officer; on 12 February 2007 for failing to go to his appointed place of duty; and on 22 February 2007 for being absent without leave (AWOL) and not being in compliance with weight and body fat standards.

6.  On 13 February 2007, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) was initiated against him for adverse action.

7.  On 13 March 2007, he received counseling for assault with battery, destruction of military property, and failing to go to his appointed place of duty.  He also received counseling on 15 March 2007, 17 April 2007, 19 April 2007, and 23 April 2007 for failing to go to his appointed place of duty and failing to go to a mandatory appointment.

8.  A DD Form 2808 (Report of Medical Examination), dated 23 March 2007, shows he was found qualified for separation on 2 April 2007.

9.  On 2 May 2007, he applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty.

10.  On 31 May 2007, the applicant's company commander notified him that he was initiating action to separate him from the U.S. Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c, for commission of a serious offense.  The unit commander stated the proposed action was based upon his AWOL, failure to report, and assault consummated by a battery.  He recommended the applicant receive a general discharge.

11.  On the same day, the applicant acknowledged receipt of notification of the proposed separation action.

12.  On 15 June 2007 after consulting with counsel, the applicant signed a conditional waiver of rights to a hearing in return for a guarantee of no less than a general discharge.  He acknowledged that he could be issued a general discharge under honorable conditions or a discharge under other than honorable conditions and could be ineligible for many or all benefits as a veteran.

13.  On 26 June 2007, the applicant's battalion commander recommended approval of his separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with a general discharge.

14.  On 28 June 2007, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.

15.  He was discharged in pay grade E-1 on 30 July 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct (AWOL).  His service was characterized as under honorable conditions (general).

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of a commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7a, states 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.

19.  Army Regulation 621-202 (Army Educational Incentives and Entitlements), chapter 2, states that Soldiers who entered active duty for the first time after 30 June 1985 and served 3 or more years of continuous active duty, if the initial obligated period of service was 3 or more years, and completed a qualifying term of enlistment are qualified for the MGIB.  A Soldier separated for misconduct (all types) under the provisions of Army Regulation 635-200, chapter 14, with a character of discharge of general under honorable conditions is not entitled to MGIB benefits.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received numerous counselings from October 2006 to May 2007 for substandard performance on the APFT, failing to report to his appointed place of duty, insubordinate conduct, AWOL, assault with battery, and destruction of property.  On 13 February 2007, a flag was initiated against him for adverse action and on 13 March 2007 he received nonjudicial punishment under Article 15 for failing to report.  He was notified by his commander of his intention to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct and that if discharged he could receive a discharge under conditions other than honorable.  He acknowledged the commander's notification and waived his rights.

2.  The evidence shows all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

3.  Based on the available evidence, there is no basis for the upgrade of his discharge from general under honorable conditions to a fully honorable discharge.  He has submitted neither probative evidence nor a convincing argument that he should not have been separated because of misconduct.  He was properly discharged and he has not shown otherwise.

4.  The evidence further shows he enlisted in the TNARNG on 13 February 2003 and acknowledged then that if he was separated for unsatisfactory performance his entitlement to the Selected Reserve MGIB would be terminated.  He was separated from the TNARNG on 1 November 2005 for unsatisfactory performance.  At the time of his enlistment in the Regular Army on 5 October 2006, he again acknowledged that he must receive an honorable discharge for service-established entitlement to the MGIB.

5.  Pertinent regulations show he must have received an honorable discharge at the conclusion of all periods of service for entitlement to MGIB benefits.  He had two periods of military service, for neither of which was he separated with an honorable discharge.

6.  In view of the foregoing, there is no basis for granting his request for an upgrade of his general discharge to qualify for MGIB benefits.

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)                                         AR20100012873



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ABCMR Record of Proceedings (cont)                                         AR20100012873



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