IN THE CASE OF:	  

		BOARD DATE:	    6 September 2011

		DOCKET NUMBER:  AR20110004608 


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, in effect, an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states his discharge is based on one incident and at the time he was injured and could not be exposed to cool weather.

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 20 February 1987 and he held military occupational specialty (MOS) 12B (Combat Engineer).  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Hand Grenade Bar.  

3.  Between October 1987 and March 1988, he was frequently counseled by several members of his chain of command for repeatedly failing to be at his assigned place of duty, having a poor attitude, destroying government property, and failing to pay his debts.

4.  On 10 December 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two specifications of failing to go to his appointed place of duty and one specification of writing bad checks. 

5.  On 17 March 1988, he received NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana. 

6.  On 8 April 1988, 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, for misconduct - patterns of misconduct.

7.  On 8 April 1988, he acknowledged receipt of the notification of his 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, and of the possible effects of an under other than honorable conditions discharge, and a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter prejudice in civilian life.

8.  22 April 1988, his senior commander recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct with the issuance of a general discharge.

9.  On 4 May 1988, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 12-14b for misconduct - pattern of misconduct and directed the issuance of a General Discharge Certificate.  On 20 May 1988, 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 a total of 1 year, 3 months, and 1 day of creditable active service.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 that a general discharge be issued 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 NJPs he received for failing to go to his appointed place of duty, writing bad checks, and wrongfully using marijuana.  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 therefore 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 for Army personnel.  Therefore, he is not entitled to an honorable discharge.







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)                                         AR20110004608





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004608



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1