IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090012466 


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 provides no explanation.

3.  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 enlisted in the Regular Army on 14 August 1989 for a period of 4 years.  He successfully completed one-station unit training in military occupational specialty 12C (bridge crewmember).

3.  On 25 September 1992, nonjudicial punishment was imposed against the applicant for using an American Telephone and Telegraph (AT&T) calling card with intent to defraud and wrongfully obtaining services from AT&T.  His punishment consisted of a reduction to E-3 (suspended), extra duty, and restriction.  The suspended portion of the punishment was vacated.

4.  On 17 December 1992, nonjudicial punishment was imposed against the applicant for operating a vehicle while drunk.  His punishment consisted of a reduction to E-2, a forfeiture of pay, and extra duty.

5.  On 4 January 1993, the applicant received a reprimand for driving an automobile while intoxicated on 4 December 1992.

6.  On 22 January 1993, nonjudicial punishment was imposed against the applicant for committing an assault upon a specialist by pointing at and threatening him with a dangerous weapon (.38 caliber pistol).  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

7.  On 22 February 1993, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for misconduct (pattern of misconduct).  The unit commander cited that the applicant came to the unit in March 1992 and was followed by a U.S. Army Criminal Investigation Command report which named him as a confirmed subject in the theft and wrongful use of an AT&T card for which he received nonjudicial punishment, that in December 1992 he was reprimanded for driving while intoxicated, that he received nonjudicial punishment in December 1992, and that in January 1993 he was arrested and charged with aggravated assault involving an unregistered pistol for which he received nonjudicial punishment.  The applicant was advised of his rights.

8.  On 22 March 1993, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  Accordingly, the applicant was separated with a general discharge on 26 March 1993 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct (pattern of misconduct).  He had served a total of 3 years, 7 months, and 13 days of creditable active service.

10.  On 27 January 1996, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, 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, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service included a letter of reprimand for drunk driving and three instances of nonjudicial punishment for various offenses including aggravated assault.  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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons were therefore 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.

ABCMR Record of Proceedings (cont)                                         AR20090012466



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012466



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1