BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110010533 


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 discharge under honorable conditions to an honorable discharge.

2.  The applicant states he made some poor decisions during his service; however, he served in the Army with pride and honor.  Although he earned the Combat Infantryman Badge and other awards, his command discharged him 5 weeks prior to his normal expiration of service.  He was young and irresponsible and made bad choices which got him into difficulties.  He made mistakes and paid for them while he was in, but continues to do so.  Department of Veterans Affairs (VA) benefits have been denied and he continues to be held  back from doing business with veterans.  He credits his life to his military experience and as a successful business owner he wants to revere his service with the honor it deserves.

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 1 August 1989 when he was almost 19 years of age.  He held military occupational specialty 11B (Infantryman).  He was awarded the Army Service Ribbon, National Defense Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Hand Grenade Bar, and Combat Infantryman Badge.

3.  Between 23 January 1990 and 19 April 1991, he was frequently counseled by various members of his chain of command for failing to follow instructions and numerous instances of failing to go to his appointed place of duty at the prescribed time.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* on 26 June 1991, for disobeying a lawful order and using disrespectful language toward a noncommissioned officer (NCO)
* on 24 September 1991, for failing to go to his appointed place of duty at the prescribed time
* on 8 January 1992, for breaking restriction and failing to go to his appointed place of duty at the prescribed time

5.  On 12 May 1992, 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 – pattern of misconduct.  Specifically, he cited the applicant's record of repeatedly breaking restriction, being disrespectful to an NCO, and failing to follow instructions.

6.  On 12 May 1992, the applicant acknowledged receipt of the notification of his proposed discharge action.  He subsequently 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 procedures and rights available to him.

7.  He acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 1 June 1992, the separation authority approved the applicant's separation action and directed the issuance of a General Discharge Certificate.  On 22 June 1992, he was discharged accordingly.

9.  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 an under honorable conditions character of service.  He completed 2 years, 10 months, and 22 days of active service.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

12.  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 numerous counselings he received for failing to follow instructions and the NJP he received on three occasions for disobeying a lawful order, disrespecting an NCO, and failing to go to his appointed place of duty on two different occasions.  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.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, there is an insufficient evidentiary basis for granting the applicant's request.

3.  He contends he was young, irresponsible, and made poor decisions.  Records show he was 21 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

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)                                         AR20110010533



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ABCMR Record of Proceedings (cont)                                         AR20110010533



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