IN THE CASE OF:	

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080007622 


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, in effect, that his general (under honorable conditions) discharge be upgraded to honorable.

2.  The applicant states, in effect, he believes his discharge should be upgraded because he is an Operation Iraqi Freedom veteran.  He also states that he was discharged because of misconduct and never evaluated for post-traumatic stress disorder.   

3.  The applicant provides no additional documentation 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 military records show that he enlisted in the United States Army Reserve, in pay grade E-1, on 26 August 2002, for 8 years.  On 26 August 2002, he was granted a medical waiver of preaccession drug and alcohol test disqualification for Regular Army enlistment and was approved for enlistment.  

3.  The applicant enlisted in the Regular Army for 4 years and entered active duty on 20 November 2002 in pay grade E-2.  He was promoted to pay grade E-3 on 20 November 2003. 

4.  The applicant's records show he served in Iraq from 19 October 2003 to 19 February 2004.

5.  On 16 June 2004, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for operating a passenger vehicle while drunk and not having a SETAF [Southern European Task Force] Operators License in his physical possession when operating a private owned vehicle on 29 May 2004.  His punishment included a reduction to pay grade E-1, a forfeiture of $597.00 pay per month for two months, and 45 days extra duty and restriction.

6.  A Report of Mental Status Evaluation, dated 3 August 2004, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, a doctor of medicine, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  The evaluating psychiatrist also opined that the applicant was mentally responsible and met retention requirements of Army Regulation 40-501, Chapter 3.  She also stated that there was no psychiatric disease or defect which warranted disposition through medical channels.  The evaluation showed no evidence of suicidal or homicidal ideations at that time.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

7.  On 5 August 2004, the applicant was determined qualified for separation and his unit commander recommended he be separated from the Army prior to his expiration of his term of service under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-12c.  




8.  On 30 September 2004, the applicant's unit company commander notified him that he was initiating action to discharge him from the US Army under the 
provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense.  The unit commander stated the proposed action was based upon his driving under the influence of alcohol and breaking restriction.  He recommended the applicant receive a general discharge.

9.  On the same day, the applicant acknowledged receipt of notification of the proposed separation action.

10.  On 4 October 2004, the applicant, after consulting with counsel, waived consideration of his case by an administrative board, contingent upon receipt of a general discharge.  He also elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

11.  On 4 October 2004, the applicant's commander recommended approval of the request for his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, with a general discharge.

12.  On 4 October 2004, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  

13.  The applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct, with a general discharge.  He was credited with 1 year, 10 months, and 25 days total active service.

14.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribed procedures for separating personnel for misconduct because of a commission of a serious offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.


16.  Army Regulation 635-200, paragraph 3-7a, further 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The evidence shows the applicant received punishment under Article 15, UCMJ, for driving under the influence.  He was notified by his commander of his intention to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, and that if discharged, he could receive a discharge under conditions other than honorable.  He acknowledged the commander's notification and waived his rights to appear before a board of officers.   

3.  The applicant's contentions have been noted; however, he was psychiatrically cleared for administrative action deemed appropriate by the command.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It appears that based on the applicant's overall record, to include his service in Iraq, it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

4.  Based on the available evidence, there is no basis for the upgrade of the applicant's discharge from general, under honorable conditions to a fully honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument that he should not have been separated because of misconduct.

5.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 



6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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)                                         AR20080007622



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ABCMR Record of Proceedings (cont)                                         AR20080007622


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