IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015313 


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, that his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he would like to reenlist in the military if possible; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) erroneously states he was absent without leave (AWOL) for a period of time.  He further states that with an HD it would be easier for him to find employment.

3.  The applicant provides no documentation 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 records show he enlisted in the Regular Army and entered active duty on 31 August 1987.  It also shows he was trained in, awarded and served in military occupational specialty 13H (Lance Crewmember).  

3.  The applicant's record further shows he was promoted to specialist (SPC)/E-4 on 1 November 1989, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PVT)/E-1 for cause on 25 February 1991.  

4.  The applicant's record also shows that during his active duty tenure, he earned the following awards:  Army Service Ribbon, Army Achievement Medal, National Defense Service Medal, Army Good Conduct Medal, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Hand Grenade.  His record documents no acts of valor or significant achievement.

5.  On 27 July 1989, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful appropriation of money, of a value of approximately $200.00, the property of a former Soldier.  His punishment for this offense was a reduction to private (PV2)/E-2 (suspended until 9 February 1990), and 14 days of extra duty and restriction.

6.  On 25 September 1990, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful towards a noncommissioned officer.  His punishment included 14 days of extra duty and an oral reprimand.

7.  On 15 February 1991, the applicant accepted NJP under Article 15 of the UCMJ for being absent without leave (AWOL) from on or about 4 January to     16 January 1991.  His punishment for this offense was a reduction to private (PV1)/E-1, a forfeiture of $521.00 pay for 2 months, 45 days of extra duty, and  45 days of restriction (suspended until 25 May 1991).

8.  On 12 March 1991, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), due to misconduct.  The unit commander cited the applicant's pattern of misconduct as the basis for taking the action.  The commander stated the applicant had been disruptive, did not respond to counseling, he had an adverse effect on the unit and its missions and that as a result he was unfit for further military service.  

9.  On 12 March 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers and elected not to submit a statement in his own behalf.  

10.  On 2 April 1991, the separation authority approved the applicant’s separation action and directed that he receive a GD.  On 5 April 1991, the applicant was discharged accordingly.  

11.  His DD Form 214 shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-abuse of illegal drugs.  At the time, he had completed a total of 3 years, 6 months, and 23 days of creditable active military service and he held the rank of private.

12.  On 9 October 1998, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military record and all other available evidence determined that his separation authority and narrative reason for separation were improper and voted to change the separation authority to paragraph 14-12b, Army Regulation 653-200, and the narrative reason to misconduct.  However, the board determined the applicant was properly and equitably discharged and voted to deny his request for a change in the characterization of his service.  Accordingly, a new DD Form 214 was issued on 9 October 1998, reflecting these changes.

13.  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.  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 or honorable discharge if such is merited by the Soldier’s overall record of service.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his GD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.
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 his rights were fully protected throughout the separation process.

3.  Although the authority and reason for the applicant's discharge authorized the imposition of an under other than honorable conditions discharge, the separation authority granted the applicant a GD based on his overall record of service.  The applicant’s disciplinary history included his acceptance of three NJP's for serious offenses.  These actions clearly diminished the overall quality of his service below that meriting the issuance of an HD.  

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)                                         AR20090015313



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ABCMR Record of Proceedings (cont)                                         AR20090015313



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