IN THE CASE OF:	  

		BOARD DATE:	    21 February 2012

		DOCKET NUMBER:  AR20110017773 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he would like the Board to take into consideration that he was a good Soldier who has a period of prior honorable service. 

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 enlisted in the Regular Army on 3 September 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  On 2 June 1988, he was honorably released from active duty in accordance with the Fiscal Year 1988 Early Transition Program.  The highest rank/grade he attained while serving on this period of active duty was specialist four/E-4.  

3.  The applicant enlisted in the Regular Army on 28 February 1989 in the rank/grade specialist (SPC)/E-4 to perform duties in MOS 94B.  The highest rank/grade he attained while serving on this period of active duty was SPC/E-4.  However, he held the rank/grade of private/E-2 at the time of separation.

4.  The applicant’s record contains numerous DA Form(s) 4856 (General Counseling Form) for poor performance and: 

* Army Physical Fitness Test failure
* disorderly conduct
* two instances of failing to pay debts
* four instances of failing to report to duty
* disobeying a lawful order
* child abuse counseling
* traffic violation

5.  The applicant received a Bar to Reenlistment Certificate on 24 April 1990.

6.  On 26 June 1990, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, chapter 14 for patterns of misconduct.  The commander further stated his reason for taking this action was the applicant’s receipt of nonjudicial punishment in the form of a company grade Article 15 for disorderly conduct, a vacation of suspension, a company grade Article 15 for failure to repair (not being at his appointed place of duty), and a company grade         Article 15 for being absent without leave (AWOL).  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.

7.  On 3 July 1990, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a general under honorable conditions discharge.  On 29 August 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he 


was discharged for misconduct - pattern of misconduct.  He completed 1 year,
5 months, and 29 days of creditable active service during this period with 3 days of time lost.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  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 applicant's request that his discharge be upgraded was carefully considered and determined to be without merit.

2.  The evidence of record shows the applicant received numerous negative counseling sessions, multiple instances of nonjudicial punishment and a bar to reenlistment.  These offenses are acts of misconduct which warrant a less than fully honorable discharge.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  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)                                         AR20110017773



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ABCMR Record of Proceedings (cont)                                         AR20110017773



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