IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015029 


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 cannot state his discharge was unjust
* At the time of his discharge he was immature and he had no personal responsibility
* With the passage of time he has realized his stupidity
* He would like the opportunity to redeem himself as he has never lost his love for the Army or this great nation
* He would like to enlist in the Air National Guard; however, he cannot do so with the type of discharge that he received
* He realizes he is responsible for the type of discharge he received; however, he has grown to be a mature and responsible adult who would like a second chance at serving his country

3.  The applicant provides a copy of his DD Form 24 (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.  On 29 June 1990, the applicant enlisted in the Regular Army for 4 years.  He completed training as an electronic warfare/signal intelligence emitter identifier/locator.

3.  The applicant was barred from reenlistment on 19 February 1992.  His commander cited two incidents of failing the Army Physical Fitness Test.  He did not submit an appeal to the bar.

4.  Nonjudicial punishment (NJP) was imposed against him on 13 April 1992 for four specifications of failing to go at the time prescribed to his appointed place of duty and for willfully disobeying a lawful order.

5.  He was counseled on 13 April 1992 for unprofessional conduct.  The applicant was told that his unsatisfactory performance and/or misconduct could result in his being administratively eliminated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 or chapter 14.  He was told of the effects of a less than fully honorable discharge and the difficulty he might experience in civilian life as a result of the type of discharge he might receive.

6.  On 18 May 1992, NJP was imposed against him again for failing to go at the time prescribed to his appointed place of duty.

7.  On 12 June 1992, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct.  The commander cited the following as a basis for his recommendation for discharge:

* Two incidents of failing to go at the time prescribed to his appointed place of duty
* A summarized Article 15 for disobeying a lawful order
* Formal counseling on his shortcomings

8.  He acknowledged receipt of the notification on 16 June 1992 and, after consulting with counsel, he elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the request for discharge on 26 June 1992 and he directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 8 July 1992, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, due to a pattern of misconduct, with a general discharge and a reentry (RE) code of 3.  He had completed 2 years and 10 days of net active service this period.

10.  A review of the applicant’s records does not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  Army Regulation 635-200 further states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility 

criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, the type of discharge he received was appropriate considering the facts of the case.

2.  His records show he had NJP imposed against him and he was counseled due to his numerous acts of misconduct.

3.  His contentions regarding his level of maturity and his desire to serve his country has been considered.  However, none of his contentions, either individually or in sum, are a basis for upgrading his discharge and considering the nature of his offenses, it does not appear that his general discharge is too harsh when a discharge under other than honorable conditions is normally considered appropriate.

4.  The type of discharge he received appropriately reflects the applicant's overall record of service.  Accordingly, there is no basis for granting his 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)                                         AR20100015029



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ABCMR Record of Proceedings (cont)                                         AR20100015029



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