IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014558 


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 an honorable discharge (HD).

2.  The applicant states, in effect, that a review of his military record should be completed and that his discharge should be upgraded to an HD.

3.  The applicant provides no additional 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's record shows he enlisted in the Regular Army (RA) on
24 January 1989 and that upon completion of required training he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 8 October 1992, the applicant reenlisted for 2 years.  His record shows that during his active duty tenure, he earned the National Defense Service Medal, Army Achievement Medal (1st Oak Leaf Cluster), Army Good Conduct Medal, Army Service Ribbon, Air Assault Badge, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His records document no acts of valor or significant achievement.

4.  The applicant's record contains Memoranda of Reprimand (MOR) from his battalion and brigade commanders, which were based on the applicant driving under the influence (DUI) of alcohol on 9 January 1993.

5.  On 20 April 1993, the applicant was counseled by his first sergeant for a DUI offense.  The first sergeant stated that the applicant was apprehended by civilian authorities for DUI on 16 April 1993 and that this was his second DUI offense within a six month period.

6.  On 24 June 1993, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, by reason of misconduct (pattern of misconduct).  The commander cited the applicant's two DUI offenses within a six-month period as the reason for taking the action.  The applicant acknowledged the notification and elected not to submit a statement in his own behalf.

7.  On 9 July 1993, the appropriate authority approved the separation action and directed the applicant receive a GD.

8.  On 16 July 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct (pattern of misconduct) with a general, under honorable conditions discharge.

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.


10.  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, 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.  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.

11.  Paragraph 3-7a of the same regulation 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 request that his GD be upgraded to an HD has been carefully reviewed.  

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 the rights of the applicant were fully protected throughout the separation process.

3.  Although the applicant's record of service was generally honorable, his record of misconduct, which included two DUI offenses within a six-month period, clearly diminished the overall quality of his service below that warranting an HD.  As a result, his overall record of service did not support the issue of an HD by the separation authority at the time of his discharge, and does not support an upgrade of his discharge now.

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 this 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)                                         AR20090014558



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ABCMR Record of Proceedings (cont)                                         AR20090014558



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