IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090012459 


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 (GD) to a fully honorable discharge (HD).

2.  The applicant states, in effect, that at the time of his discharge he was young, under stress, and pending a divorce.  He also claims he saw awful things as a medical corpsman (MEDIC).  He claims he currently works at a Department of Veterans Affairs (VA) hospital and helps many veterans.  He believes he has paid his dues, yet is still paying dues to this day.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 records show he enlisted in the Regular Army (RA) on 3 March 1988.  It also shows he trained in and he was awarded military occupational specialty (MOS) 91B (Medical Specialist) and that the highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

3.  The applicant's record shows that during his tenure on active duty, he earned the Army Service Ribbon, Army Lapel Button, National Defense Service Medal, Air Assault Badge, Noncommissioned Officer Professional Development Ribbon, Marksman Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records document no acts of valor or significant achievement.

4.  On 27 February 1989, the applicant received a Headquarters, U.S. Army Support Command, Hawaii, Schofield Barracks, HI memorandum, subject: Notice of Suspension of Driving Privileges and Right to Limited Hearing, as a result of being arrested for driving while intoxicated (DWI) with a blood-alcohol level of .140 and for driving with an expired safety sticker on 18 February 1989.  The applicant's privately owned vehicle (POV) driving privileges on all U.S. Army Support Command, Hawaii installations and property were suspended pending resolution of the DWI charges.

5.  On 5 April 1989, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk on duty on 31 March 1989.  His punishment for this offense was a reduction to private (PV1)/E-1 (suspended for 60 days), forfeiture of 7 days pay (suspended for 60 days), and 14 days of extra duty.

6.  On 20 June 1990, a unit level letter of reprimand was imposed on the applicant as an administrative measure under the provisions of paragraph 3-4 of Army Regulation 600-37 (Unfavorable Information), as a result of his apprehension for spousal abuse on 26 May 1990.

7.  On 30 November 1990, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for assaulting his spouse on 20 October 1990 by grabbing her by her left arm and leaving a 3 inch scratch on her left forearm.  His punishment for this offense was a reduction to private first class (PFC)/E-3 (suspended, to be automatically remitted if not vacated before 30 May 1991), forfeiture of $148.00 for one month (of which $119.00 is suspended to be automatically remitted if not vacated before 30 May 1991), and 14 days of extra duty.


8.  The applicant's record contains four Army and Air Force Exchange Service Notice of Overdue Payment documents which were sent to his commander for assistance in collection based on his overdue payments for the period
31 October 1991 through 2 February 1992.

9.  On 1 March 1993, the applicant received a Headquarters, U.S. Army Support Command, Hawaii, Schofield Barracks, HI memorandum, subject: Notice of Suspension of Driving Privileges and Right to Limited Hearing.  This document informed the applicant that based on his apprehension for DWI on 15 February 1993 his driving privileges for his POV on all United States Army, Hawaii installations had been suspended for one year.

10.  On 1 April 1993, the unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b and 12c, by reason of patterns of misconduct and commission of a serious offense.  The commander cited two DWI incidents, two spousal abuse incidents, his being drunk on duty, and his record of NJP and Indebtedness as the reasons for initiating the action.

11.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of his rights.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.

12.  On 16 April 1993, the separation authority approved the applicant’s separation and directed that he receive a GD.  The DD Form 214 the applicant was issued upon his discharge on 28 May 1993 shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense.  It further shows he completed a total of 5 years, 2 months, and 25 days of creditable active military service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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, 
convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

15.  Chapter 14 of the same regulation further stipulates that the separation authority may issue a GD or HD if warranted by the member’s overall record of service; however, an under other than honorable conditions (UOTHC) discharge is normally appropriate for members separated under this chapter of the regulation.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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 he was young and under stress for various reasons at the time of his discharge and he has paid his dues was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The record further shows that the separation authority recognized the applicant’s overall record of service by authorizing a GD when the normal discharge for members separated by reason of misconduct is an UOTHC.  Although his assistance to veterans in his current position is noteworthy, his disciplinary history, which included two DWI and two spousal abuse incidents, clearly diminished the overall quality of his service below that meriting an HD.  Therefore, his overall record of service did not support the issue of an HD by the separation authority at the time and does not support an upgrade of his discharge at this late date. 

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 the aforementioned 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)                                         AR20090012459



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ABCMR Record of Proceedings (cont)                                         AR20090012459



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