IN THE CASE OF:	  

		BOARD DATE:	    7 January 2010

		DOCKET NUMBER:  AR20090015151 


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, to have his general discharge upgraded to an honorable discharge. 

2.  The applicant states that there is no error in his discharge, but he needs to upgrade his discharge so he would be able to accept a job offer in Kuwait.

3.  The applicant provides a record of a conference call regarding the job offer in Kuwait in support of this 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 records shows he enlisted in the Regular Army on 7 March 1984.  He successfully completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  He was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He was promoted to Sergeant on 5 July 1987.  This was the highest grade he held.

3.  The available evidence shows that nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice was imposed against the applicant for being derelict in the performance of his duty in which he negligently failed to maintain proper accountability and possession of his M16 weapon, on or about 27 June 1989.  The imposed punishment was a reduction in grade to E-4, a forfeiture of $520.00 per month for 2 months (suspended to be automatically remitted it not sooner vacated before 16 October 1989), and extra duty for 45 days.  The applicant did not appeal the punishment.

4.  On 17 July 1989, the imposed punishment was vacated and the unexecuted portion of the punishment was duly executed based on the following offenses:  on or about 30 July 1989 without authority the applicant did not go to his appointed place of duty, to wit:  extra duty at the battalion.  On or about 30 July 1989, he was disorderly and disobeyed a noncommissioned officer when ordered to stay at the barracks.  

5.    On 11 September 1989 the applicant was stopped by the military police (MP) for not having a post decal, he had a strong odor of alcohol on his breath and was asked to get out of his vehicle.  He proceeded to drive off in a reckless manner.  The MPs followed him to his residence and escorted him to the MP station.  He had a blood alcohol content of .23. 

6.  On 1 December 1989, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14, Section III, paragraph 14-12C, of Army Regulation 635-200 (Personnel Separations), for disorderly conduct of a nature to bring discredit upon the armed forces.  On the same date, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel on 15 December 1989 and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He acknowledged that he understood that he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his own behalf.


7.  Both the battalion commander and the brigade commander recommended approval of the applicant’s discharge.

8.  The separation authority approved the applicant’s separation action and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c (Commission of a Serious Offense).  He also directed that the applicant be issued a General Discharge Certificate, characterized as Under Honorable Conditions.  

9.  On 25 January 1990, the applicant was separated and was credited with 
5 years, 10 months, and 19 days of creditable active service.

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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

11.  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 if the service is otherwise so meritorious that any other characterization would be clearly inappropriate

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge characterized as under honorable conditions should be upgraded to an honorable discharge so that he may be eligible for employment in Kuwait.

2.  The applicant’s administrative separation was accomplished in compliance with regulations applicable at the time with the appropriate characterization of service.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  


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)                                         AR20090015151





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ABCMR Record of Proceedings (cont)                                         AR20090015151



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