IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110010441 


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 an honorable or a general discharge.

2.  The applicant states, in effect, that actions of 20 years ago should not be held against him now.  He states he should be granted an upgrade of his discharge so he can continue to improve things for his family and himself.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 enlisted in the Regular Army on 3 May 1989.  

3.  The applicant was counseled on five separate occasions between 3 November and 28 November 1989 for the following offenses:

* Being absent without leave (AWOL)
* failure to be at his appointed place of duty
* violating and breaking restriction
* failure to correct motivation/attitude problems
* continued disruptive behavior
* continued failure to conform to military standards of conduct
* consistent misconduct
* lack of motivation

4.  During counseling he was notified of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.

5.  On 27 October 1989, he accepted nonjudicial punishment (NJP) for being AWOL from 1 October through 12 October 1989.

6.  On 6 December 1989, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14, for misconduct, due to a pattern of misconduct.  The commander cited the applicant's poor attitude and lack of discipline as demonstrated by his consistent matter of misconduct as the basis for his recommendation.  The applicant acknowledged receipt of the notification and, after consulting with counsel, elected to submit a statement in his own behalf.  He stated:

* he made the wrong decision when he entered the Army
* he entered the Army for his family and not for himself
* he went AWOL because of family problems and he wanted his commanders to kick him out of the Army
* his girlfriend was at home pregnant and they both believed he should be with her
* his mother had a heart condition and other problems and he believed he should be there for her
* he wanted to go home no matter what it took
* he did not care what kind of discharge he got as long as he got out of the Army and back home where he belonged

7.  The appropriate authority approved the recommendation for discharge on 15 December 1989 and directed the issuance of a discharge under other than honorable conditions.

8.  Accordingly, on 22 December 1989, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to a pattern of misconduct.  His DD Form 214 shows he completed 6 months and 10 days of net active service this period and that he was AWOL on the following dates:

* 1 October through 11 October 1989
* 22 October through 24 October 1989
* 10 November through 26 November 1989
* 14 December through 22 December 1989

9.  The available evidence does not 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.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

	b.  Paragraph 3-7a 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; and

	c.  Paragraph 3-7b 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 contentions have been noted.  However, he was issued a discharge that reflects his overall record of service.

2.  His records show he had NJP imposed against him and he was counseled on five separate occasions as a result of misconduct.  He requested a discharged and declared that he would do anything he could to get out of the Army.  Considering the nature of his offenses, it does not appear the type of discharge he received is too harsh.

3.  He did not serve honorably or under honorable conditions and the fact that it has been over 20 years since his discharge is not a sufficient justification to warrant the requested relief.

4.  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)                                         AR20110010441



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010441



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1