IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100029102 


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 his discharge be upgraded to honorable.

2.  The applicant states, in effect, he served 30 days in confinement due to his first court-martial.  Upon returning to his unit, he was harassed by his lieutenant and first sergeant and put on restriction and extra duty for no reason.  When he refused to work he was court-martialed again but it was dismissed.  He was then offered a general discharge under honorable conditions.  Although he did not want to end his military service he had no other option.  This has always haunted him.  He was a good troop but a very young man.  He made a mistake and missed movement which led to a downward spiral.  His military service was ruined by his superiors.  Other than missing movement he served honorably.  

3.  The applicant 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 records show he enlisted in the Regular Army on 22 April 1986 at the age of 17 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 3rd Battalion, 27th Infantry, Fort Ord, CA.  He was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

3.  On 16 March 1987, he was convicted by a summary court-martial of one specification of breaking restriction on 13 January 1987, one specification of missing movement on 14 January 1987, and one specification of being absent without leave (AWOL) from 15 - 24 January 1987.  He was sentenced to a forfeiture of pay, confinement for 30 days, and reduction to the rank of private/
E-1.  

4.  On 14 July 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty.

5.  On 14 August 1987, a bar to reenlistment against him was approved for a pattern of misconduct and inability to follow instructions.

6.  On 25 August 1987, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b, by reason of misconduct-pattern of misconduct.

7.  On 25 August 1987, he acknowledged receipt of the proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  He further acknowledged he understood if he was issued a general discharge he could expect to encounter prejudice in civilian life.

8.  On 26 August 1987, his chain of command recommended approval of his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, with a general discharge.



9.  On 26 August 1987, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12b, and directed the issuance of a General Discharge Certificate.  On 10 September 1987, he was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct-pattern of misconduct with a general discharge.  He completed 1 year, 3 months, and 17 days of creditable active service with 33 days of lost time.

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

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.  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.

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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the summary court-martial he received for missing movement and the NJP he received for being absent from his appointed place of duty.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, he is not entitled to an honorable discharge.

3.  The applicant contends his discharge should be upgraded because he was young and made mistakes.  Records show he was almost age 19 at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military obligations.

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)                                         AR20100029102



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ABCMR Record of Proceedings (cont)                                         AR20100029102



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