BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090012553 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he is currently serving in the Alabama Army National Guard, that he is serving as a noncommissioned officer, and that he has been faithfully serving for almost six years.

3.  The applicant provides a 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 enlisted in the Regular Army on 14 February 1985 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 63W (wheel vehicle repairer).  

3.  On 10 June 1987, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of extra duty.    

4.  Between 13 July 1987 and 26 December 1987, the applicant received six traffic tickets for various violations.  His post driving privileges were revoked for 
5 years on 16 November 1987.  On 21 June 1988, the applicant was detained by military police and released to his unit for driving on a suspended driver license, speeding, and failure to maintain liability insurance.   

5.  Between 25 October 1986 and 22 June 1988, the applicant was counseled on numerous occasions for various infractions which included missing formations, inability to adapt, driving on a suspended license, and failing to maintain liability insurance. 

6.  On 14 July 1988, nonjudicial punishment was imposed against the applicant for failure to repair and failing to obey a lawful order.  His punishment consisted of extra duty.

7.  On 26 July 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a, for misconduct (minor disciplinary infractions).  His unit commander recommended that he receive a discharge under other than honorable conditions.

8.  On 26 July 1988, the applicant consulted with counsel and waived consideration of his case by an administrative separation board.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He elected not to submit a statement in his own behalf.  

9.  On 30 August 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  On 30 August 1988, a request for reconsideration of characterization of discharge was submitted by the applicant's commanding officer.  He cited that while the chapter action was being processed the applicant committed an additional offense. 

11.  On 1 September 1988, nonjudicial punishment was imposed against the applicant for disobeying a lawful order (driving with a suspended license).  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

12.  On 15 September 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a, for misconduct (minor disciplinary infractions).  His unit commander recommended that he receive a discharge under other than honorable conditions and cited that the applicant illegally operated a vehicle while on suspension and caused an accident. .

13.  On 15 September 1988, the applicant consulted with counsel and waived consideration of his case by an administrative separation board and elected not to submit a statement in his own behalf.  

14.  On 6 October 1988, the separation authority revoked his 30 August 1988 endorsement and approved the request for reconsideration of characterization of service.  He directed the issuance of a discharge under other than honorable conditions.

15.  Accordingly, the applicant was discharged on 13 October 1988 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct (minor disciplinary infractions).  He had served a total of 3 years and 8 months of creditable active service.     

16.  The applicant enlisted in the Delaware Army National Guard on 31 January 2004 and transferred to the Alabama Army National Guard on 5 August 2006.

17.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

18.  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 prescribes 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 is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

19.  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.  

20.  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's service in the Army National Guard following his release from active duty in 1988 was carefully considered.  However, his record of service in 1988 included adverse counseling statements, numerous traffic violations, and three nonjudicial punishments.  As a result, his record of service was not satisfactory and 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 a general or 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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

3.  The type of discharge directed and the reasons therefore were 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)                                         AR20090012553





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ABCMR Record of Proceedings (cont)                                         AR20090012553



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