BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012939 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) from SHAPE [Supreme Headquarters Allied Powers Europe] to be with his wife (a specialist four) because they were newly married and she was depressed.  At the time his wife had to remain at West Point because she only had a green card (she was from El Salvador).  He points out his various duty assignments and indicates that his wife left him and he experimented with some drugs.  He also states that he was told his discharge would be upgraded to honorable in 10 years.

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 (RA) on 6 July 1978 and he was honorably discharged on 14 April 1981 for immediate reenlistment.  He reenlisted on 15 April 1981, attained the rank/grade of sergeant (SGT)/E-5 on 1 May 1983, and he was honorably discharged on 13 June 1985 for immediate reenlistment.  He reenlisted on 14 June 1985 for a period of 3 years.

3.  On 24 February 1986, nonjudicial punishment was imposed against the applicant for signing a false official document with intent to deceive, signing an official document with intent to defraud, and false pretenses.  His punishment consisted of a reduction to the rank/grade of specialist (SPC)/E-4 (suspended) and a forfeiture of pay (suspended).  On 7 July 1986, the suspended portions of the sentence were vacated.  On 22 September 1986, the punishment of a reduction to E-4 and forfeiture of pay imposed on 24 February 1986 and subsequently vacated on 7 July 1986 were set aside.

4.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 31 July 1987, shows the applicant received nonjudicial punishment in violation of Article 112 (drug offense); however, no other information is available.

5.  On 3 August 1987, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).

6.  On 3 August 1987, after consulting with counsel the applicant requested consideration of his case by a board of officers.

7.  On 28 September 1987, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct.  He based his recommendation for separation on the following:  indebtedness, forgery, AWOL/dropped from the rolls, and drug use.

8.  A board of officers convened on 14 December 1987 and found that the applicant's pattern of misconduct and continued indebtedness was supported by the evidence and testimony presented and recommended that he be separated 

from the service and issued an under other than honorable conditions discharge.  On 10 February 1988, the separation authority approved the findings and recommendation of the board.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 16 March 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 9 years, 8 months, and 11 days of creditable active service.

10.  On 10 July 1989, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

11.  Amy 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 (military or civilian), 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.

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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges based on the passage of time.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service, the reason for discharge, or both were improper or inequitable.  A review of this case reveals 

no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.

3.  The applicant’s record of service during his last enlistment included two nonjudicial punishments for serious offenses and a bar to reenlistment.  He was a sergeant.  As a result, his record of service was not satisfactory and he 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, under honorable conditions or an honorable discharge.

4.  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.

5.  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)                                         AR20090012939



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ABCMR Record of Proceedings (cont)                                         AR20090012939



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