IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110013801 


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 an honorable discharge.

2.  The applicant states:

* he received a general discharge because he needed to be at home with his mother after his brother’s death
* while he was “clearing post” he was told that his discharge would automatically be upgraded 
* to his knowledge his discharge has not been upgraded

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 enlisted in the Regular Army for 2 years on 27 July 1984, in pay grade E-1.  He completed training as a fire support specialist.  He reenlisted in the Army for 6 years on 28 April 1986.  He was promoted through the ranks to pay grade E-4.

3.  On 31 March 1988, the applicant was counseled for failure to go to his appointed place of duty.

4.  He accepted nonjudicial punishment (NJP) on 12 April 1988 for being absent without leave (AWOL) from 25 March to 26 March 1988.

5.  On 12 April 1988, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct.  The commander cited failure to repair and numerous cases of misconduct as the basis for his recommendation.  He acknowledged receipt of the notification and, after consulting with counsel, elected not to submit a statement in his own behalf.

6.  The appropriate authority approved the recommendation for discharge on 19 April 1988 and directed the issuance of a General Discharge Certificate.

7.  On 26 April 1988, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct.  He completed 3 years, 9 months of net active service this period.

8.  The applicant's records fails to show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  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, they are not substantiated by the evidence of record. 

2.  There is no evidence in the available record showing that the applicant received a general discharge because he needed to be at home with his mother after his brother’s death.  There is also no evidence to show that he was told by Army officials that his discharge would be automatically upgraded. 

3.  His records show he was counseled for failure to go to his appointed place of duty and that he had NJP imposed against him for being AWOL.  He was discharged due to numerous cases of misconduct.  His service was not so meritorious as to warrant an honorable discharge. 

4.  The applicant has failed to show error or injustice in the type of discharge he received.  In view of the foregoing, his request should be denied. 

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)                                         AR20110013801





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ABCMR Record of Proceedings (cont)                                         AR20110013801



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