IN THE CASE OF:	  

		BOARD DATE:	    19 July 2011

		DOCKET NUMBER:  AR20110000680 


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.  The applicant states he was unfairly discharged based on a supervisor who did not like him.

3.  The applicant provides three third-party statements.

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 28 April 1987 for a period of 3 years and training as a parachute rigger.  He completed basic training at Fort Leonard Wood, Missouri; airborne training at Fort Benning, Georgia; and advanced individual training at Fort Lee, Virginia, before being transferred to Fort Bragg, North Carolina, for his first and only duty assignment on 13 November 1987.  He was advanced to pay grade E-4 on 1 November 1989.

3.  On 29 November 1989, he received assignment instructions to Japan with an arrival month of August 1990.

4.  On 5 December 1989, he reenlisted for a period of 4 years, assignment to Japan, and a selective reenlistment bonus.

5.  On 21 December 1989, nonjudicial punishment (NJP) was imposed against him for dereliction of duty.

6.  On 6 April 1990, NJP was imposed against the applicant for disobeying a lawful order to secure the motor pool, two specifications of sleeping on his guard post, and two specifications of leaving his post without being properly relieved.

7.  On 6 July 1990, NJP was imposed against the applicant for two specifications of failing to go to his place of duty and breaking restriction.

8.  His records show he received at least 17 negative counseling statements during the period 20 December 1989 to 24 July 1990 for:

* dereliction of duty
* sleeping on duty
* failing to go to his place of duty
* failing to be in the proper uniform
* violating motor pool standing operating procedures
* failing his Army Physical Fitness Test
* disobeying a lawful order from a superior noncommissioned officer
* poor job performance

9.  On 20 July 1990, the applicant's commander notified him he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct – pattern of misconduct.  He cited the applicant's disciplinary record, failure to respond to repeated counseling sessions, and substandard performance of duty as the basis for his recommendation.

10.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

11.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a general discharge.

12.  Accordingly, he was discharged under honorable conditions on 20 August 1990 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – pattern of misconduct.  He completed 3 years, 3 months, and 23 days of active service.

13.  There is no evidence in the available records to show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Paragraph 3-7a of Army Regulation 635-200 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.

16.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  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.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

2.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses.  The applicant's overall service simply did not rise to the level of a fully honorable discharge.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20110000680



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ABCMR Record of Proceedings (cont)                                         AR20110000680



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