IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110005261 


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 that his discharge under other than honorable conditions be upgraded to a general or honorable discharge.

2.  The applicant states that he enlisted at the age of 17 and did not realize that his discharge would affect his life so greatly.  He goes on to state that since his discharge he has raised a child, went to college and has matured as a man of 41. He goes on to state that the time he was on active duty had a positive affect on the man he is today.  He continues by stating that at the time of his enlistment he did not see or understand the benefits of the lessons that were being taught him by the Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 23 December 1969 and he enlisted in the Regular Army on 7 July 1987 for a period of 4 years and training as an infantryman.  He completed his one-station unit training (OSUT) as a heavy anti-armor weapons infantryman at Fort Benning, Georgia and was transferred to Fort Riley, Kansas on 19 October 1987 for his first and only duty assignment.

3.  On 30 October 1987 nonjudicial punishment (NJP) was imposed against him for fighting.

4.  On 25 February 1988 he was convicted by a summary court-martial of disobeying a lawful order from a superior commissioned officer, of being absent without leave (AWOL) from 1 January to 13 January 1988, and assaulting a superior noncommissioned officer.

5.  On 25 June 1988 NJP was imposed against him for failure to repair.

6.  On 26 August 1988 NJP was imposed against the applicant two specifications of being AWOL, missing movement and failure to repair.

7.  On 8 September 1988 NJP was imposed against the applicant for the wrongful use of cocaine.

8.  On 19 September 1988 the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He cited as the basis for his recommendation the applicant’s disciplinary record, repeated acts of misconduct and his failure to respond to numerous counseling sessions.

9.  On 21 September 1988 a local bar to reenlistment was imposed against the applicant.

10.  On 5 October 1988, the appropriate authority approved the recommendation for discharge and directed that the applicant be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on 12 October 1988 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 1 year, 2 months and 20 days of active service and had 16 days of lost time due to AWOL and imprisonment.

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

13.  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 included 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.  

14.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  Paragraph 3-7b also 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
  
3.   The applicant’s contentions and stated post-service accomplishments have been noted; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses.  The applicant’s overall service simply does not rise to the level of discharge under honorable conditions.

4.  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 has 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 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)                                         AR20110005261





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ABCMR Record of Proceedings (cont)                                         AR20110005261



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