IN THE CASE OF:	  

		BOARD DATE:	 5 April 2011

		DOCKET NUMBER:  AR20100023772


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 general under honorable conditions discharge.

2.  The applicant states he was penalized too severely and because of his discharge he has been denied many benefits.

3.  The applicant provides a self-authored statement to the Board and the following:

* DA Form 4856 (General Counseling Form), dated 13 October 1988
* DA Form 4856, dated 1 November 1989
* DA Form 4856, dated 29 November 1989
* monthly performance counseling form, dated 28 February 1989
* DA Form 4856, dated 28 February 1989
* monthly performance counseling form, dated 31 March 1989
* DA Form 4856, dated 31 March 1989
* DA Form 4856, dated 1 June 1989
* DA Form 4856, dated 29 June 1989
* DA Form 4856, dated 31 July 1989
* DA Form 4856, dated 31 August 1989
* DA Form 4856, dated 29 September 1989
* DA Form 4856, dated 30 October 1989
* monthly performance counseling form, dated 29 November 1989
* DA Form 4856, dated 27 December 1989
* 
DA Form 4856, dated 30 March 1990
* DA Form 3626 (Vehicle Registration/Driver Record), undated

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 23 March 1988.  He completed training and he was awarded military occupational specialty 16S (Man Portable Air Defense System/Pedestal Mounted Stinger Crewmember).

3.  On 7 November 1989, he accepted nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ) for failing to be at his prescribed place of duty at the prescribed time on 3 November 1989.

4.  On 14 November 1989, his immediate commander referred him to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for an assessment to determine whether or not he met the criteria for enrollment.   The ADAPCP clinical director assessed him and scheduled him for alcohol and drug training.

5.  On 31 January 1990, he was incarcerated in the Geary County Detention Center, Geary County, KS, for driving under the influence of alcohol and for driving on a suspended license.

6.  On 11 April 1990, his immediate commander disapproved the applicant's request for extension of his enlistment contract by indicating "disapproved" in section II (Commander's Review) of the DA Form 3340-R (Request for Regular Army Reenlistment or Extension) and by indicating he [commander] had initiated a DA Form 4126-R (Bar to Reenlistment).

7.  On 13 April 1990, he accepted NJP under the UCMJ for failing to be at his prescribed place of duty at the prescribed time on 2 April 1990.

8.  His records contain numerous DA Forms 4856 which document generally positive duty performance, but which also highlight numerous financial management problems, including non-support of dependents and numerous dishonored checks.

9.  On 19 July 1990, 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.

10.  On 24 July 1990, 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.

11.  On 13 August 1990, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed that he receive a general under honorable conditions discharge.  On 14 September 1990, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged by reason of misconduct for a pattern of misconduct.  He completed a total of 2 years, 5 months, and 22 days of net active service.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

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

13.  He provides a self-authored statement in which he contends:

* he had a few conduct issues, but nothing that warranted his discharge
* he was looking forward to his pending assignment to Germany
* he was upset when he found out he would receive a general discharge
* he was told his discharge would be automatically upgraded to honorable after he had been out of the service for 6 months
* at no time was he advised of his rights or counseled
* he has had issues getting copies of his medical records
* it makes him angry to think he spent 3 years in the Army and does not have any benefits
* he has had a medical problem for 20 years and every time he tries to get help he is denied

14.  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.

15.  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 an upgrade of his general 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, his 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.  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 veterans' 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.

5.  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 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)                                         AR20100023772



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