IN THE CASE OF: BOARD DATE: 9 December 2010 DOCKET NUMBER: AR20100014629 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 upgrade of his general discharge to an honorable discharge and restoration of his rank/grade to sergeant (SGT)/E-5. 2. The applicant states that he would like to upgrade his rank/pay grade to the highest rank/grade he achieved while on active duty. 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 military records show that he enlisted in the Regular Army on 18 February 1987. He was awarded military occupational specialty 92A (automated logistical specialist), and was promoted to SGT/E-5 on 1 April 1990. 3. On 3 September 1991, the applicant submitted a memorandum to his battalion commander, Subject: Letter of Consideration for Article 15, UCMJ [Uniform Code of Military Justice].in response to nonjudicial punishment (NJP) he was receiving for driving while intoxicated on 12 August 1991. The punishment imposed on the applicant was reduction from SGT/E-5 to specialist (SPC)/E-4. The applicant also had his motor vehicle operator's license revoked. 4. On 27 March 1992, the applicant's commander was notified that the applicant had a positive urinalysis for cocaine. 5. On 16 December 1993, the applicant again accepted NJP under Article 15, UCMJ, for driving while drunk. His punishment included a reduction from SPC/ E-4 to private (PV1)/E-1. 6. On 9 February 1994, the applicant was arrested for shoplifting approximately $83.00 worth of merchandise from the Fort Sam Houston Main Exchange. At the time of his arrest, the applicant stated several times that he did not know why he did it, but that he was sorry. The applicant waived his rights and admitted to taking the items. 7. On 11 February 1994, court-martial charges were preferred against the applicant for stealing merchandise of a value of about $83.00, the property of the Army and Air Force Exchange Service. 8. On 24 February 1994, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 10, for the good of the service - in lieu of trial court-martial. 9. The applicant's request was approved by the appropriate authority. Accordingly, on 22 March 1994 the applicant was discharged with an under other than honorable conditions discharge in the rank/grade of PV1/E-1. 10. On 20 March 1998, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to a general discharge. However, the ADRB determined the reason and authority for his discharge was both proper and equitable and voted not to change them. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant was twice arrested for driving while intoxicated/drunk; he tested positive for cocaine in a urinalysis; and he admitted to shoplifting from the Army and Air Force Exchange Service. Such a pattern of misconduct certainly warranted an under other than honorable conditions discharge. 2. While the ADRB directed upgrade of the applicant's discharge to a general discharge, there is no basis for further upgrading his discharge. 3. The applicant was reduced in rank and grade twice as a result of his acceptance of NJP. He has not submitted any documentation or argument which would warrant restoring his rank/grade. 4. In view of the foregoing, there is no basis for granting the applicant’s requested relief. 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) AR20100014629 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100014629 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1