IN THE CASE OF:
BOARD DATE: 9 July 2009
DOCKET NUMBER: AR20090003709
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 general discharge be upgraded to honorable.
2. The applicant states that it has been over 15 years since his discharge.
3. The applicant provides no additional documentary evidence 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 applicants 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 applicants 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 Regular Army on 20 June 1990 and trained as a multichannel communications system operator.
3. On 5 May 1991, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and indecent exposure. His punishment consisted of a reduction to E-1 and extra duty.
4. On 24 June 1991, a bar to reenlistment was imposed against the applicant.
5. On 15 October 1991, nonjudicial punishment was imposed against the applicant for larceny. His punishment consisted of extra duty and restriction.
6. On 12 November 1991, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense). The unit commander cited that the applicant stole an audio cassette tape from the Army and Air Force Exchange Service.
7. On 14 November 1991, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.
8. On 26 November 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
9. Accordingly, the applicant was discharged on 17 December 1991 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense). He had served a total of 1 year, 5 months, and 28 days of creditable active service.
10. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
11. 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 (military or civilian offense), and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
12. Army Regulation 635-200, paragraph 3-7a, 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicants record of service included a bar to reenlistment and two nonjudicial punishments. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.
2. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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.
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