IN THE CASE OF:	  

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20080019927 


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 that his discharge under other than honorable conditions be upgraded to at least a general discharge.

2.  The applicant states that he received a general discharge at the time of separation and now finds that his records show that he was discharged under other than honorable conditions.  He goes on to state that there may have been a mix-up or confusion with another Soldier.  In any event, he desires to have at least a general discharge. 

3.  The applicant provides a copy of 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 enlisted in the United States Army Reserve (USAR) on 12 November 1991 for a period of 8 years, a cash enlistment bonus and training as a carpentry and masonry specialist.  He remained in the USAR until he was honorably discharged on 5 November 1992.

3.  On 6 November 1992, he enlisted in the Regular Army for a period of 4 years and training as a heavy equipment operator.  He completed his training at Fort Leonard Wood, Missouri and was transferred to Fort Rucker, Alabama for his first and only duty assignment.

4.  The applicant went absent without leave on 29 June 1993 and remained absent until he surrendered to military authorities at Fort Devens, Massachusetts, on 30 June 1993.

5.  On 1 September 1993, the applicant was convicted by a summary court-martial of being AWOL from 29 June to 30 June 1993, of two specifications of stealing $150.00 each from another Soldier, and three specifications of falsely making and uttering fictitious checks with the intent to defraud against the checking account of another Soldier in the amount of $150.00 for each specification.  He was sentenced to confinement for 30 days, reduction to the pay grade of E-1 and a forfeiture of pay.

6.  On 6 October 1993, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  He cited the applicant's court-martial conviction as the basis for his recommendation.

7.  After consulting with counsel, he waived all of his rights and declined to submit a statement in his own behalf.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if he was discharged under other than honorable conditions.

8.  The appropriate authority (a major general) approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 3 November 1993, under the provisions of Army Regulation 635-200, paragraph 14-12c(1) for misconduct.  He had served 9 months and 3 days of active service and had 86 days of lost time due to AWOL and confinement.

10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  A review of his records also fails to show any indication that he was ever notified that he would be discharged under honorable conditions.

12.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service has been considered and it simply does not rise to the level of a discharge under honorable conditions.

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.




      _______ _ XXX  _______   ___
               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)                                         AR20080019927



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ABCMR Record of Proceedings (cont)                                         AR20080019927



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