IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090014748 


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, in effect, an upgrade of his general discharge (GD), under honorable conditions to an honorable discharge (HD).  

2.  The applicant states, in effect, his discharge should be upgraded to an HD because his legal rights were violated during the discharge process and his chain of command did not follow established rules and regulations during the processing of his discharge.  

3.  The applicant provides a self-authored affidavit 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 and entered active duty on 23 August 1983.  He successfully completed basic training and advanced individual training (AIT) at Fort Jackson, South Carolina, and the basic airborne course at Fort Benning, Georgia.  Upon completion of training, he was awarded military occupational specialty (MOS) 94B1P (Food Service Specialist-Parachutist).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four (SP4) on 1 July 1985, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class (PFC) for cause on 26 February 1986, to private (PV2)/E-2 on 
14 March 1986, and to private (PV1)/E-1 on 27 March 1986.  

4.  The applicant's DA Form 2-1 further shows he earned the Army Service Ribbon, Parachutist Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement. 

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  26 February 1986, for attempting to commit larceny; 14 March 1986, for failing to obey a lawful order of a superior commissioned officer; 27 March 1986, for falsely signing medical documents using the names of doctors with the intent to defraud; and 7 May 1986, for wrongfully impersonating a commissioned officer by publicly wearing the uniform and insignia of the rank of a lieutenant of the Army and asserting the authority of signing a DA Form 3032 (Headcount Record Sheet) as the same.  

6.  On 5 May 1986, the unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The commander cited the applicant's NJP record for attempted larceny, fraudulent documents, failure to repair, and impersonating an officer as the basis for taking the action.  The applicant acknowledged receipt of the notification on the same date.  

7.  On 5 May 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving legal counsel, the applicant completed an election of rights, in which he acknowledged that because he was not being considered for a discharge under other than honorable conditions (UOTHC), his case would not be considered by an administrative separation board, and he did not have the right to representation by counsel.  He also elected not to submit a statement in his own behalf.  
8.  On 8 May 1986, the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (commission of a serious offense) and directed the applicant receive a GD.  On 14 May 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he held the rank of PV1 and he had completed a total of 2 years, 8 months, and 22 days of active military service at the time of his discharge. 

9.  There is no evidence in the available record that shows the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations. 

10.   Army Regulation 635-200, dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14 and states, in pertinent part, that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was improper and inequitable because his rights were violated was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms he was properly notified by his commander when separation action on him was initiated, and that he was afforded the opportunity and did in fact consult with trial defense counsel, who advised him of his rights in connection with the separation action.  Subsequent to receiving this legal counsel, he completed an election of rights in which he elected not to submit a statement in his own behalf.  Therefore, it is clear his 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 applicant's extensive disciplinary history, which included his acceptance of NJP on four separate occasions, clearly diminished the overall qualify of his service below that meriting a fully honorable discharge.  Therefore, the GD he received accurately reflects the overall quality of his undistinguished record of service and it would not be appropriate or serve the interest of justice or equity to upgrade it 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 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)                                         AR20090014748



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014748


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1