IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100028187 


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 discharge to an honorable discharge.

2.  He states that he was very young at the time that he enlisted and he made a lot of poor decisions.  However, joining the military was not a bad decision.  He is terribly sorry for the disrespect and dishonor he brought upon the service.  He would have been a fifth generation serviceman within his family.  Unfortunately, his girlfriend (age 17) got pregnant and another good friend was killed in an automobile accident.  He did not know how to handle the situation and he went absent without leave (AWOL).  Upon return to the service, he was administratively separated due to misconduct.  He really wishes he had taken his lumps and stayed in the military.  He would be close to retirement now.  Just recently, he applied for Department of Veterans Affairs (VA) medical care and his service officer volunteered to help him with his application.  

3.  He provides letters of support from the mother of a very good friend, his father, and a career Army master sergeant.

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 Regular Army (RA), at age 18, on 9 October 1987, for 3 years.  He completed training and he was awarded military occupational specialty 43E (Parachute Rigger).  He was advanced to pay grade E-2 on 9 April 1988.

3.  On 15 August 1988, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 7 July to 13 July 1988 and for the wrongful use of marijuana sometime between 5 and 19 July 1988.

4.  On 25 August 1988, the applicant's unit commander notified the applicant that action was being initiated to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Separation), paragraph 14-12b, with a general discharge, for pattern of misconduct.  The company commander stated the reasons for the proposed action were the applicant's positive urinalysis and period of AWOL.  

5.  On 25 August 1988, after consulting with counsel, the applicant acknowledged receipt of the company commander's notification.  He acknowledged he understood he could be issued an under other than honorable conditions discharge, and deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all Federal and State benefits.  He also acknowledged he understood he could be issued a general discharge and the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 25 August 1988, the applicant's company commander requested a waiver of the applicant's rehabilitative transfer.  The company commander stated rehabilitation would not be in the best interest of the Army as he would not be a productive Soldier. 

7.  On 8 September 1988, the applicant's battalion commander recommended approval of the recommendation to separate the applicant pursuant to paragraph 14-12b of Army Regulation 635-200 with the issuance of a General Discharge Certificate.  
8.  On 14 September 1988, the separation authority approved the applicant's separation and directed the issuance of a general discharge.

9.  On 23 September 1988, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct, with a general discharge, in pay grade E-1.  He was credited with completing 
11 months and 8 days of active service and he was AWOL from 7 through 12 July 1988.

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  He provided three letters of support wherein the individuals stated the applicant was a good person, father, and husband.   

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was punished under Article 15 for a positive urinalysis and for being AWOL.  On 25 August 1988, the applicant acknowledged that he had consulted with counsel been advised of basis for his separation action and the rights that were available to him.  The separation authority approved his separation action on 14 September 1988.  He was discharged on 23 September 1988, for misconduct-pattern of misconduct, with a general discharge. 

2.  His administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

3.  The evidence of record shows he was well aware of the reasons for his discharge at the time he was separated.  A discharge under other than honorable conditions was normally appropriate.  It appears his chain of command considered his overall record when he was issued a general discharge.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

4.  His contention that his age impacted his ability to serve successfully is without merit.  He was age 18 when he enlisted in the RA.  He served from October 1987 to July 1988 without incident.  At the time of his offenses he was age 19.  There is no evidence he was any less mature than other Soldiers of the same who served successfully and completed their service obligations.  

5.  The evidence the applicant submitted is not sufficiently mitigating to warrant an upgrade of his discharge.  

6.  In view of the foregoing, 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)                                         AR20100028187



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ABCMR Record of Proceedings (cont)                                         AR20100028187



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