RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 April 2006
      DOCKET NUMBER:  AR20050010216


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rodney E. Barber              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
show the Army Discharge Review Board (ADRB) upgraded his discharge at an
earlier date.

2.  The applicant states he is still feeling the effects of an
"inappropriate decision" (emphasis in the original) made over 10 years ago
which has continuously created unnecessary struggles and strife in his
life.  He was discharged with a general discharge after completing 3 years
and 8 months of a 4-year enlistment.  It was a lot of work overturning his
discharge.  The ADRB ruled the discharge was too harsh for what he had
done, especially considering his awards and time served, meaning he never
should have received a general discharge.

3.  The applicant states his discharge upgrade allowed him to go to school,
but it took so long to put together he had to pay for his first two and a
half years of school himself.  The education benefits office said it was
their "policy" (emphasis in the original) to pay only one year back.  They
later said they would give him a two-year extension, but that would not
help him as he has already graduated.

4.  The applicant states he had been out of the service for a long time,
five or six years, before he tried to overturn his discharge, and it was a
long, tedious process.  He should never have gotten that discharge and it
substantially lowered the quality of his life in his first five years out
of service.  He could have been in school in 1995.  The education benefits
office will not pay for the two years of school he did attend, even though
he should have had the money available way back in 1994 when he left the
military.

5.  The applicant provides the ADRB action; a letter from the Department of
Veterans Affairs (DVA) dated 7 January 2003; and a letter from the Defense
Finance and Accounting Service dated 14 March 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 November 1990 for 4
years and 17 weeks.  He completed basic training and advanced individual
training and was awarded military occupational specialty 11B (Infantryman).
 He completed
basic airborne training.  He was assigned to the 2d Battalion, 504th
Parachute Infantry Regiment, 82d Airborne Division, Fort Bragg, NC.  He was
promoted to Specialist, E-4 on 17 January 1993.

2.  On 22 November 1993, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
failing, on or about 31 October 1993, to go to his appointed place of duty
(the bus to go to Ranger school).  His punishment was to be reduced to
Private, E-1; to forfeit $407.00 pay for two months; to perform extra duty
for 45 days, and to be restricted for          45 days.

3.  On 10 February 1994, the applicant accepted NJP under Article 15, UCMJ
for being absent without leave (AWOL) from on or about 24 December 1993 to
on or about 5 January 1994.  His punishment was 14 days extra duty and 14
days restriction.

4.  On or about 1 June 1994, the applicant's commander notified him he was
initiating action to separate the applicant for commission of a serious
offense under the provisions of Army Regulation 635-200, chapter 14.  He
cited the applicant's 10 February 1994 Article 15 for AWOL.  He recommended
the applicant receive a general discharge.

5.  On 1 June 1994, the applicant indicated he was advised by consulting
counsel of the basis for the recommended separation action.  He understood
that he could expect to encounter substantial prejudice in civilian life if
a general discharge were issued to him.  He understood that if he received
a general discharge certificate, he could make an application to the ADRB
or the Army Board for Correction of Military Records (ABCMR) for upgrading
[of his discharge].  He was afforded the opportunity to submit a statement.

6.  On 10 June 1994, the applicant submitted a statement.  He requested he
be given a fully honorable discharge.  He noted he had spent 3 years and 8
months in the Army, noted his military education, and noted his awards and
decorations. He stated the only benefits he would not receive would be his
educational benefits.  That was one of the main reasons he enlisted.  He
did not try to ride his time until he got out of the service.  He felt he
was an exceptional Soldier.  He exercised poor judgment and was severely
punished for his actions.  He was not trying to justify what he did, he was
just asking to be allowed the chance to go to school and not let one
decision he made hurt him for the rest of his life.

7.  On 27 June 1994, the appropriate commander approved the recommendation
to separate the applicant and directed he be issued a General Discharge
Certificate.

8.  On 21 July 1994, the applicant was discharged, under the provisions of
Army Regulation 635-200, chapter 14, for misconduct, with a general under
honorable conditions discharge.  He had completed 3 years, 8 months, and 3
days of creditable active service and had 12 days of lost time.  He had
been awarded the Army Good Conduct Medal, the Army Achievement Medal, the
Army Service Ribbon, the National Defense Service Medal, the Parachutist
Badge, the Humanitarian Service Medal, the Expert Infantryman Badge, the
Expert Marksmanship Qualification Badge with rifle bar, and the Air Assault
Badge.

9.  Records at the Army Review Boards Agency show the applicant submitted
an application, received on 31 May 2001, to the ADRB.  No board action was
taken at that time.

10.  In an application dated 2 April 2002, the applicant requested the ADRB
upgrade his discharge.  The ADRB considered the applicant's faithful and
honorable service as well as the infractions of discipline and the
seriousness of the offenses.  The ADRB found that the length and quality of
his service mitigated his misconduct and, on 10 July 2002, the ADRB
determined the characterization of his service was inequitable and voted,
in a 4 to 1 decision, to upgrade his discharge to fully honorable.  The
applicant was notified by letter dated 17 July 2002 that his discharge had
been upgraded.

11.  On 7 January 2003, the DVA informed the applicant his date of
eligibility for education benefits under the Montgomery GI Bill was 17 July
2002, the date of his upgraded discharge.

12.  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, convictions by civil authorities,
desertion or absence without leave.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should never have received a general
discharge is noted.  However, the separation authority was not authorized
to separate him with a fully honorable discharge.

2.  The ADRB upgraded the applicant's discharge to fully honorable on 10
July 2002 (not 17 July 2002) based on equity, not on Government error.
While the ADRB found that the length and quality of his service mitigated
his misconduct, it is noted that the applicant's misconduct began in
October 1993, more than a year before his normal separation date.
Moreover, he went AWOL for 12 days the month following his November 1993
Article 15.

3.  Equity is "in the eye of the beholder."  The applicant was a Soldier
with over three and one-half years of service, who departed AWOL in
December 1993 for 12 days, who had received an Article 15 just the month
previously, and who provided no mitigating explanation for his AWOL other
than "he exercised poor judgment."  It is noted the decision of the ADRB to
upgrade the applicant's discharge was not a unanimous decision.

4.  In addition, the applicant was informed on 1 June 1994, when he was
advised of the basis for the separation action, that he could make an
application to the ADRB or the ABCMR to upgrade his discharge.  The
available evidence of record shows he did not make his first request to
upgrade his discharge until around May 2001, almost seven years after he
was discharged.  The applicant acknowledges that he waited five or six
years after his separation before he tried to overturn his discharge, when
he could have done so immediately.

5.  The applicant has provided insufficient evidence to show why his
requested relief should be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __cak___  __reb___  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.



                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010216                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060411                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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