RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000895 


	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.









      The following members, a quorum, were present:













	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, reinstatement on active duty.  

2.  The applicant states, in effect, that he was not properly treated and was unjustly discharged. 

3.  The applicant provides no documentary evidence with his application; however, he refers to documents maintained by the Department of Veterans Affairs (VA) in support of his application.  

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 record shows that he enlisted in the Regular Army and entered active duty on 9 May 1989.  He was trained in and awarded military occupational specialty (MOS) 88H (Cargo Specialist), and specialist (SPC) is the highest rank he attained while serving on active duty.  

3.  The applicant's record shows that he served in Southwest Asia (SWA) from 11 August 1990 through 11 August 1991, and in Somalia from 30 December 1992 through 11 January 1993.  It also shows that during his active duty tenure, he earned the Army Good Conduct Medal (AGCM), National Defense Service Medal (NDSM), Armed Forces Expeditionary Medal (AFEM), Joint Meritorious Unit Award (JMUA), Army Service Ribbon (ASR), SWA Service Medal with 3 bronze service stars, Kuwait Liberation Medal (KLM), and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  


4.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include an Army Discharge Review Board Case Report and Directive
(OSA Form 172), which indicates that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct, on 13 December 1995.  The separation authority approved the applicant's under other than honorable conditions (UOTHC) discharge on 28 February 1996, and the applicant was discharged accordingly on 7 March 1996.  

5.  The applicant's record also contains a separation document (DD Form 214) he was issued upon his discharge.  It shows that he was discharged under the provisions of Paragraph 14-12c(2), Army Regulation 635-200, by reason of Misconduct.  It also shows he completed a total of 6 years, 9 months, and 
29 days of active military service.  

6.  On 14 March 1997, the ADRB after carefully considering the applicant's case, determined that his misconduct was mitigated by service of sufficient merit to warrant an upgrade of his discharge to a general, under honorable conditions discharge (GD); however, it found the reason and authority for his discharge was both proper and equitable, and it voted not to change them.  

7.  Army Regulation 635-200 (Personnel Separations) 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.  Paragraph 14-12c contains guidance on separation for commission of a serious offense and Paragraph 14-12b(2) provides the authority to separate members for the abuse of illegal drugs.  The regulation stipulates that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an honorable discharge (HD) or GD may be issued by the separation authority if warranted by the member's overall record of service, an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust and that he should be reinstated on active duty was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant's record is void of a separation packet that contains the specific facts and circumstances surrounding his discharge processing.  However, the record does contain a properly constituted separation document that identifies the authority and reason for the applicant's separation, and there is a presumption of regularity attached to this DD Form 214.  

3.  The record shows that the ADRB voted to upgrade the applicant's UOTHC discharge to a GD based on his having sufficient service of merit to mitigate his misconduct.  However, the ADRB determined that authority and reason for his discharge was proper and equitable, and it voted not to change them.  Absent any evidence of record or independent evidence provided by the applicant that would suggest the authority and reason for his discharge were unjust, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  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.

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
ABCMR Record of Proceedings (cont)                                         AR20080000895



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508