IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090004130 


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 the reason for his separation be changed to  
"13-5" instead of misconduct and to show he participated in Operation Vigilant Warrior.

2.  The applicant states he had a disagreement with two other Soldiers which resulted in his discharge.  A major at Womack Army Hospital told him he would be separated under the provisions of Army Regulation 635-200, paragraph 13-5.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Certificate of Achievement.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no additional contentions, arguments or documentation.

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 records are incomplete.  They do not contain copies of his award orders, Personnel Qualification Record, or copies of all of his nonjudicial punishments (NJPs).  

3.  The applicant enlisted in the Regular Army on 24 February 1994 with a reenlistment on 14 November 1996. 

4.  An undated Certificate of Achievement shows the applicant was commended for his participation during Operation Vigilant Warrior.  Operation Vigilant Warrior (October - December 1994) was a preplacement of personnel in Kuwait as a response to Iraq's moving ground forces toward Kuwait.

5.  The applicant received NJP under Article 15, Uniform Code of Military Justice as follows:

	a.  for willfully disobeying a lawful order, failure to go to his appointed place of duty, dereliction of duty, and being absent without leave (AWOL) from 31 July 1997 through 7 August 1997;

	b.  for being AWOL from 2 through 3 September 1997; and

	c.  for being AWOL from 8 through 14 September 1997.

6.  On 27 October 1997, following a fourth period of AWOL (20 through             21 October 1997), the applicant was counseled and advised that he was being processed for separation under Army Regulation 635-200, paragraph 14-12(b)(2) for a pattern of misconduct.  His unit commander recommended a general discharge.

7.  The applicant acknowledged the separation action on 27 October 1997 and was placed in an excess leave status for the period 28 October 1997 through 24 March 1998.

8.  On 24 March 1998, the applicant was discharged under honorable conditions under Army Regulation 635-200, paragraph 14-12-12b with 4 years and 13 days of creditable service and 20 days of lost time.

9.  His DD Form 214 shows he was awarded the Army Achievement Medal with one Oak Leaf Cluster, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Hand Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part, it provides the following:

	a.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions; and 

	b.  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.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

11.  Army Regulation 635-5 (Separation Document) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  As then in effect, the regulation did not require a specific entry for participation during military operations as is required under the current regulation.  The current regulation requires an entry at block 18 on the DD Form 214 showing the name of the country a Soldier was deployed to and the inclusive dates.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he had a disagreement with two other Soldiers which resulted in his discharge.  A major at Womack Army Hospital told him he would be separated under the provisions of Army Regulation 635-200, paragraph 13-5.

2.  The record contains no documentation of any incident with other Soldiers at all, or that he was considered for separation under any provision other than Army Regulation 635-200, paragraph 14-12b.

3.  At the time of the applicant was separated, there was no requirement for entry of periods of foreign service during military operations.  Further, even applying current standards, there is insufficient information available to show either the country of deployment or inclusive dates of that service.  Therefore, it is not appropriate to correct his DD Form 214.

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
      
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)                                         AR20090004130





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ABCMR Record of Proceedings (cont)                                         AR20090004130



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