IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110010677 


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 general discharge to a fully honorable discharge.

2.  The applicant states he was told his discharge would be upgraded 6 months after his discharge. 

3.  The applicant provides 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's records show he enlisted in the Regular Army on 22 April 1987 and he held military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  He was assigned to Fort Polk, LA.

3.  His records contain an extensive history of negative counseling by members of his chain of command for various infractions including:

* Disrespect to noncommissioned and commissioned officers
* Failure to repair
* Lack of motivation
* Not adhering to uniform standards
* Insubordination
* Apprehension for driving under the influence
* Not having required insurance or registration
* Missing formation
* Disobeying lawful orders
* Failure to report/missing formation
* Multiple instances of disrespect
* Insubordination

4.  On 23 February 1989, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty.

5.  In early April 1989, in view of his repeated misconduct, he underwent a mental status evaluation.  He was described as being fully alert and oriented with passive behavior and a depressed mood.  His thought process was clear and his memory was good.  He had the mental capacity to understand and participate in administrative proceedings.  He was mentally responsible and met the retention standards of chapter 3 of Army Regulation 40-501 (Standard of Medical Fitness). He was cleared for administrative separation deemed appropriate by his chain of command. 

6.  On 10 April 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct - a pattern of misconduct.  He recommended the issuance of a general discharge.

7.  On 10 April 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and personal appearance before a board of officers (he was not qualified to do so because he did not have 6 or more years of total service).  He further elected not to submit a statement on his own behalf.

8.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - pattern of misconduct.  The immediate commander recommended the issuance of a general discharge.

10.  On 14 April 1989, the applicant's intermediate commander recommended approval of the recommendation with the issuance of a general discharge.

11.  On 17 April 1989, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a general discharge.  Accordingly, the applicant was discharged on 8 May 1989.  

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct with a general discharge.  This form further confirms he completed a total of 2 years and 17 days of creditable active military service.

13.  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.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

15.  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 displayed a pattern of misconduct consisting of various instances of disrespect, failure to report, insubordination, driving under the influence, and other infractions.  Accordingly, his chain of command initiated separation action against him.  

2.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  In connection with his separation processing and in response to his misconduct, he underwent a mental status evaluation wherein he was found mentally responsible.  

4.  The Army has never had a policy wherein a character of service is upgraded due to passage of time.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty 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)                                         AR20110010677



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110010677



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1