IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009746 


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 other than honorable conditions discharge be upgraded.

2.  The applicant states that he had substance abuse problems and health issues at the time.  He also states that the amount of stress caused him to abuse alcohol thus compounding his mental problems.

3.  The applicant provides no additional documentary evidence in support of his request. 

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 show he enlisted in the Regular Army for a period of 4 years on 30 December 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest grade he attained was private/pay grade E-2.

3.  The applicant's records show he departed his unit in an absent without leave (AWOL) status on 12 October 1988.  He surrendered to military authorities at Fort Drum, NY, on 24 October 1988.

4.  On 15 November 1988, the applicant pleaded guilty at a summary court-martial to one specification of being AWOL during the period on or about 12 October 1988 through on or about 24 October 1988.  The court sentenced him to a reduction to private/pay grade E-1, a forfeiture of $447.00 pay for 1 month, 45 days of hard labor without confinement, and 45 days of restriction.  The sentence was approved on 22 November 1988.

5.  On 5 December 1988, the applicant again departed his unit in an AWOL status.  He surrendered to his unit on 10 December 1988.

6.  On 19 January 1989, the applicant departed his unit in an AWOL status.   He was apprehended by the Mountain Grove Police Department, MO, on 27 January 1989 and was returned to military control on 1 February 1989.

7.  The applicant's records contain several counseling statements by various members of his chain of command for miscellaneous infractions and/or misconduct, including his AWOL and/or disobeying orders.

8.  On 7 February 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct - serious acts of misconduct.  Specifically, the immediate commander cited the applicant's summary court-martial, instances of AWOL, breaking restriction, disobeying orders, and apprehension. 

9.  On 7 February 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

10.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

11.  On 7 February 1989, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - serious acts of misconduct with the issuance of an under other than honorable conditions characterization of service. 

12.  On 7 February 1989 and 7 March 1989, the applicant's intermediate and senior commanders recommended approval of the applicant's separation.

13.  On 17 March 1989, the separation authority approved the applicant's discharge and directed that he be reduced to the lowest enlisted grade that his discharge be characterized as under other than honorable conditions.  Accordingly, on 24 March 1989, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  He completed 1 year, 1 month, and 25 days of creditable active military service and had 91 days of lost time.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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 contends that his discharge should be upgraded.

2.  The applicant's statement that he was a substance abuser is noted; however, there is no evidence in his records and the applicant did not provide any substantiating evidence that shows he used or was a substance abuser.

3.  The evidence of record shows that the applicant had a history of serious disciplinary problems including one instance of a summary court-martial, two instances of AWOL, one instance of apprehension, and various other infractions (disobeying orders and breaking restriction).  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

5.  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.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20090009746



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ABCMR Record of Proceedings (cont)                                         AR20090009746



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