IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110008523 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states during his first 2 years of service he was an exemplary Soldier.  In the month of October 1989 he had two incidents he felt were minor.  At that time in his life the Army meant everything to him.  He loves his country and feels an honorable discharge would make him feel good about himself and his country.

3.  The applicant provides:

* a Certificate of Achievement
* a letter, dated 16 March 2011, from the Department of Veterans Affairs (VA)

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.  He enlisted in the Regular Army on 28 September 1987 for a period of 
4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  He was assigned in Germany to:

* 1st Battalion, 75th Field Artillery from 15 January 1988
* 2nd Battalion, 14th Field Artillery from 16 May 1988

4.  He was promoted to private first class/pay grade E-3 on 28 September 1988.  He was awarded the Army Achievement Medal for meritorious achievement from 
23 June 1987 to 25 November 1988.  He was awarded a Certificate of Achievement for meritorious achievement from 12-16 June 1988.

5.  He accepted nonjudicial punishment (NJP) on:

* 9 November 1989 for willfully disobeying an order from a noncommissioned officer (NCO).
* 10 December 1989 for resisting apprehension by the military police.

6.  On 14 November 1989, he was formally counseled concerning his disrespect to an NCO, disobeying an NCO, and missing formation.  He was advised that if similar incidents occurred again he could be separated from the service prior to his expiration of term of service (ETS) and receive a general discharge or an under other than honorable conditions discharge.  He was advised he may expect to encounter substantial prejudice in civilian life if he received a general discharge and loss of Army and VA benefits if he received a discharge under other than honorable conditions.

7.  On 27 December 1989, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b, chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of his pattern of misconduct.  He had accepted NJP on two occasions and was counseled for:

* failure to follow instructions
* failure to be in his prescribed place of duty
* missing formation
* disobeying an NCO

The commander further notified the applicant he was recommending that he receive a general discharge under honorable conditions.

8.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  On 27 December 1989, his commander recommended him for discharge due to his pattern of misconduct.  He requested that rehabilitation requirements be waived because it would not be in the best interest of the Army as it would not produce a quality Soldier.

10.  On 17 January 1990, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  He did not submit statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

11.  The appropriate authority waived the requirement for a rehabilitative transfer and approved the recommendation for discharge under the provisions of 
chapter 14 of Army Regulation 635-200, due to a pattern of misconduct with a general discharge under honorable conditions.  Rehabilitation was waived as it would have created serious disciplinary problems to the military mission and unit.

12.  On 16 February 1990, he was discharged.  He completed 2 years, 4 months, and 19 days of active service that was characterized as under honorable conditions.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14.

15.  Army Regulation 635-200 states 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.  He accepted NJP on two occasions and he did not complete the term of service he contracted for.  He was counseled after he received NJP the first time as to the consequences of further misconduct.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It is clear his previous service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

2.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  In view of the above, there is an insufficient basis to upgrade his 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)                                         AR20110008523



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008523



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1