IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090009704 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that his discharge was inequitable because it was based upon a false accusation regarding an incident that occurred after he had completed 29 months of service in the Regular Army (RA) following six years of service in the Army National Guard (ARNG).  He also states that it was only after being harassed and threatened by his company commander that he accepted a general, under honorable conditions discharge.  The applicant contends that he deserves a better discharge.

3.  The applicant continues that since he had more than six years of service, he requested to appear before a separation board, but his company commander denied him the opportunity to stand before a board.  He also states that JAG (Judge Advocate General) [his legal counsel] advised him to accept the commander's offer, which was a violation of his legal rights and incorrect legal information.  The applicant states that he found out later that he was entitled to appear before a separation board based upon having more than six years of service.  The applicant contends that he never committed a serious offense while serving in the U.S. Army so, his characterization of service should be changed to honorable.



4.  The applicant adds that he had only four months remaining on a 4-year obligation and that he was willing to fulfill that obligation, but this false accusation 
resulted in him being harassed and denied promotion.  He contends that since the accusation caused embarrassment to another CO [commanding officer], his commander would not let the matter go until he was punished.  The applicant continues that this accusation caused him to lose focus on his daily duties and caused him much stress.  He further states that he left a well paying job and transferred from the ARNG to the RA because he enjoyed being in the military so much and wanted to pursue his dream as a Soldier. 

5.  The applicant provides no 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 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 served in the ARNG during the period 7 January 1985 through 2 December 1990.  On 3 December 1990, he enlisted in the RA.  The applicant's military occupational specialty (MOS) was 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of separation he held the rank/grade of private (PV1)/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:  for wrongfully consuming alcoholic beverages while in the field; and for absenting himself, without authority, from his unit [being absent without leave (AWOL)]. 

4.  The applicant's record contains a DA Form 4126-R (Bar to Reenlistment Certificate) which shows a local bar to reenlistment was imposed upon the applicant on 12 January 1994.  The catalysts cited for this bar were his previously mentioned AWOL and for being disrespectful.  This form also shows the applicant elected not to appeal the bar to reenlistment action.

5.  The applicant's record contains two DA Forms 4187 (Personnel Action), dated 18 March 1994 and 16 July 1994, which show he was AWOL from the afternoon of 17 March 1994 until the morning of 20 March 1994.

6.  The applicant’s unit commander notified him that he was initiating action which could result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense consisting of robbery, false swearing, adultery, and communicating a threat.  The unit commander informed the applicant that his proposed separation could result in discharge, release from active duty to a reserve component, or release from custody and control of the Army.  The unit commander also informed the applicant that the least favorable characterization of service that he could receive was general, under honorable conditions.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to a hearing before an administrative board if he had six or more years of active and reserve military service as the time of separation, to waive these rights in writing, and to withdraw his waiver of any of these rights at any time prior to the date the discharge authority directed or approved his separation.  The commander also informed the applicant that if he was entitled to have his case heard before an administrative separation board, he could submit a conditional waiver of that right.

7.  On 12 July 1994, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he voluntarily elected to waive consideration of his case by an administrative separation board contingent upon his receipt of a characterization of service or description of separation no less favorable that under honorable conditions, otherwise referred to as a "General" discharge.  The applicant also waived his right to submit statements in his own behalf.  He declared that he made his request of his own free will and had not been subjected to any coercion whatsoever by any person.  The applicant acknowledged his understanding that he could, up until the date the separation authority directed or approved his separation, withdraw his waiver and request that an administrative separation board hear his case.  The applicant also acknowledged he understood that if he were issued a general, under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.

8.  The applicant’s unit commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  The commander cited the 
applicant's misconduct consisting of robbery, false swearing, adultery, and communicating a threat as the specific factual reasons for this action.  The commander also stated that he did not feel the applicant stood any chance of developing into a satisfactory performer in the Army of the future.

9.  The separation authority approved the unit commander's request, directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, and directed that he be issued a General Discharge Certificate.

10.  On 8 August 1994, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Under Honorable Conditions, (General)" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  Block 26 of this form shows he was assigned a Separation Program Designator code of "JKG."  Block 28 (Narrative Reason for Separation) shows "Misconduct - Commission of a Serious Offense."  Block 29 (Dates of Time Lost During This Period) shows the applicant had lost time during the periods from 8 November 1993 to 8 November 1993 and from 17 March 1994 to 19 March 1994.

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

12.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

13.  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 member’s 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 applicant's contention that his record should be corrected by upgrading his general, under honorable conditions discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The record shows the applicant had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  Evidence shows the applicant was not responsive to the rehabilitative efforts of his command.

3.  The evidence shows that the applicant was afforded an opportunity to have his cased heard by an administrative separation board.  Evidence also shows that on 12 July 1994, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he voluntarily elected to waive consideration of his case by an administrative separation board contingent upon his receipt of a characterization of service or description of separation no less favorable that under honorable conditions, otherwise referred to as a "General" discharge.

4.  The evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20090009704



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ABCMR Record of Proceedings (cont)                                         AR20090009704



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