RECORD OF PROCEEDINGS


	IN THE CASE OF:    


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070013535 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant makes no additional statement.

3.  The applicant provides three letters of support from faculty at Chattahoochee Technical Institute; a Bachelor of Science Diploma from DeVry Institute of Technology; and a Master of Business Administration Diploma from Keller Graduate School of Management, DeVry University.

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.  On 3 July 1985, the applicant enlisted in the Regular Army for 4 years.   He completed his initial training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).

3.  On 1 September 1987, the applicant was promoted to specialist four, pay grade E-4.

4.  On 13 September 1989, the applicant was assigned for duty as a supply specialist with the Noncommissioned Officers Academy, Schofield Barracks, Hawaii.

5.  On 27 February 1990, the applicant received performance counseling.  He was reminded that he was under investigation for sexual harassment; that he had received a speeding ticket; that he had failed to report for duty on time; that when he did show for duty, he was in the wrong uniform; and that he had failed to 
inform his chain of command about applying for a loan from the Army Emergency Relief Fund.  He was advised these types of actions would no longer be tolerated and that he had used up his last chance. 

6.  On 25 April 1990, the applicant received a Letter of Reprimand for disobeying a lawful order from a noncommissioned officer who was in the process of quelling a disturbance.  

7.  The applicant’s name was reported on the Dishonored Check Notification Letter for the months of February, March, May, June, July, and August 1990.  He had written six checks totaling $446.55 that were returned due to insufficient funds.

8.  On 17 September 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for assaulting a noncommissioned officer with his fist.  The punishment included reduction to private first class, pay grade E-3 (suspended), a forfeiture of $224.00 pay per month for 1 month (suspended), and 14 days restriction and extra duty.

9.  On 19 October 1990, the applicant became engaged in a verbal altercation with his wife, which became loud and resulted in his choking her with both of his hands.  He was subsequently apprehended for offenses in violation of Article 128, UCMJ, for assault; and for violation of Article 134, UCMJ, for disorderly conduct.

10.  On 11 January 1991, the applicant was counseled regarding indebtedness.  He was 2 months behind in his car payments and late fees which amounted to $605.20

11.  On 17 January 1991, the suspended punishment of reduction to private first class and forfeiture of $224.00 pay per month for 1 month imposed on 
17 September 1990 was vacated.  

12.  On 25 February 1991, the applicant’s commander initiated a DA Form 4126 (Bar to Reenlistment Certificate).  He cited the applicant’s NJP and record of dishonored checks as the basis for this action.  The applicant did not desire to submit a statement of his behalf.  On 13 March, the appropriate authority approved the bar.  The applicant did not appeal the bar action.

13.  On 10 December 1991, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.   The applicant was apprehended for larceny of Post Exchange merchandise valued at $294.79; for being an accessory to larceny; and for conspiracy to commit larceny. The commander also cited the applicant’s NJP, dishonored checks, and a letter of reprimand.  He recommended that the applicant receive an under other than honorable conditions discharge.

14.  On 27 February 1992, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board on condition that he receive a characterization of service no less favorable than general, under honorable conditions, and that his separation be suspended until 31 March 1992 to allow time for his wife to deliver their baby prior to departing.  He elected not to make a statement in his own behalf.

15.  On 24 April 1992, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

16.  Accordingly, on 5 May 1992, the applicant was discharged under honorable conditions.  He had completed 6 years, 10 months, and 3 days of creditable active service.

17.  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.

18.  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.

19.  Army Regulation 635-200 further provides, in pertinent part, that misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

20.  Under the UCMJ, the maximum punishment allowed for violation of Article 121 for larceny of a value of $500.00 or less and for assault includes a punitive discharge.
21.  The three letters of support state that the applicant is an outstanding employee and instructor and that he has gone the extra distance to insure that each student understands the material presented in class.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant committed a serious offense that warranted separation.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Based on the applicant’s record of indiscipline, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Furthermore, given his overall record of misconduct, the general discharge constitutes lenient treatment. Therefore, he is not entitled to an honorable discharge.

5.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the above, the applicant’s request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ QAS___  __RML___  __WDP    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.