IN THE CASE OF:	  

		BOARD DATE:	 17 March 2011

		DOCKET NUMBER:  AR20100022569


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 for the period ending 30 March 1993 so that he can obtain the Montgomery GI Bill (MGIB) to further his education.

2.  The applicant states that he served his country well and would like to continue through his education.  He further states he was given an honorable discharge while in the Army National Guard.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 March 1993 and 23 November 2008.
 
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 2 October 1989 for a period of 4 years.  He completed training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  On 18 March 1992, he received a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence on 22 February 1992.

4.  Records show he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

* on 22 July 1992, for failing to go at the time prescribed to his appointed place of duty on 22 July 1992 
* on 23 November 1992, for failing to go at the time prescribed to his appointed place of duty on 28 October and 17 April 1992 
* on 8 February 1993, for failing to go at the time prescribed to his appointed place of duty on 25 and 26 January 1993

5.  On 9 February 1993, he was notified of the initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.

6.  On 17 February 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by and personal appearance before an administrative separation board.  He also elected not to make any statements in his own behalf.

7.  On 19 March 1993, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he receive an under honorable conditions discharge.  On 30 March 1993, he was discharged accordingly.  His DD Form 214 confirms he was discharged by reason of misconduct - pattern of misconduct.  He completed a total of 3 years, 5 months, and 29 days of net active service during this period of active duty.  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

8.  On 29 July 1996, the Army Discharge Review Board (ADRB) reviewed his request for upgrade of his general discharge.  After careful consideration the ADRB determined the reason for his discharge and the characterization of his service was both proper and equitable and unanimously voted to deny relief.

9.  On 19 December 1998, he enlisted in the Pennsylvania Army National Guard (PAARNG).

10.  On 26 November 2007, he was ordered to active duty in support of Operation Enduring Freedom.  On 23 November 2008, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, completion of required active service.

11.  On 30 August 2010, he was discharged from the PAARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35j, for unsatisfactory participation.  He received an under other than honorable conditions discharge.

12.  Army Regulation 635-200 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.

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's request for upgrade of his under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Based on his record of indiscipline, including instances of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  He contends he was given an honorable discharge while in the Army National Guard.  The evidence of record shows that upon his release from active duty after completing his required active service on 23 November 2008 he in fact received an honorable characterization of service.  However, he was discharged from the PAARNG and as a Reserve of the Army on 30 August 2010 with an under other than honorable conditions discharge by reason of unsatisfactory participation.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans' benefits should be addressed to the Department of Veterans Affairs.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100022569



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