IN THE CASE OF:	  

		BOARD DATE:	    7 July 2011

		DOCKET NUMBER:  AR20100029624 


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:

* The reason for his separation was misconduct
* He had surgery prior to his separation
* He feels as though an upgrade should be granted

3.  The applicant provides two character reference letters.

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 4 September 1986 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11B (infantryman).  On 29 January 1989, he was honorably discharged the purpose of immediate reenlistment.  He reenlisted on 30 January 1989 for a period of 5 years.

3.  Between 27 March 1989 and 6 January 1989, he was counseled on numerous occasions for various infractions, including:

* Failing to go at the time prescribed to his appointed place of duty
* Unsatisfactory performance
* Missing formations
* Indebtedness
* Writing worthless checks
 
4.  On 30 March 1989, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.

5.  On 22 June 1989, NJP was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.

6.  On 22 June 1989, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for misconduct - pattern of misconduct.  The unit commander cited as the reasons for the separation action the applicant's two NJPs, dishonored checks, record of counseling, and apathy.

7.  On 28 June 1989, he consulted with counsel.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.  

8.  On 18 July 1989, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  Accordingly, on 28 July 1989, he was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct.  He completed 2 years, 10 months, and 25 days of creditable active service.


10.  The applicant provided a character reference letter from a friend who attests he always displays a high degree of integrity, responsibility, and ambition and that he is a leader rather than a follower.  He also provided a character reference letter from a Lead Case Manager at the Salvation Army who attests the applicant is a participant in the Veterans on the Move and/or Harbor Light Drug Treatment at the Salvation Army. 

11.  On 8 February 1994, the Army Discharge Review Board denied his request for an honorable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member'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 character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

2.  His record of service during his last enlistment included numerous adverse counseling statements and two NJPs.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant an honorable discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.


4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100029624



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ABCMR Record of Proceedings (cont)                                         AR20100029624



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