IN THE CASE OF:
BOARD DATE: 22 April 2010
DOCKET NUMBER: AR20090017828
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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).
2. The applicant states he is trying to reenter the Army.
3. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army from 23 October 1985 through
21 February 1990 when he was discharged for misconduct under the provisions of paragraph 14-12c, Army Regulation 635-200.
3. The applicant's record contains a separation packet which shows:
* He was married and he committed adultery with a woman not his wife
* He was restricted to his barracks and broke restriction
* He visited his girlfriend and became involved in an altercation which led to assault and damage of property
4. On 1 November 1989, the applicant's commander notified him of intent to discharge him for misconduct. The applicant sought legal counsel and, on 9 January 1990, acknowledged notification, stating his rights had been explained to him. He submitted a statement, but that statement is no longer available. On an unknown date, the applicant's commander forwarded the request for discharge to the approving authority. On 25 January 1990, the discharge was approved with the issuance of a GD. The applicant was discharged on
21 February 1990.
5. There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.
6. 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.
7. Army Regulation 635-200 (Personnel Separations) 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 members 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 wants an HD in order to rejoin the Army.
2. The applicant was charged with adultery, breaking restriction, assault, and damage to private property. His commander elected to administratively discharge him under the provisions of paragraph 14-12c, Army Regulation
635-200.
3. The applicant acknowledged notification and consulted with legal counsel who explained the basis for the separation action, its effects, and the rights available to him. The applicant stated he understood his rights and submitted a statement on his own behalf for consideration by the approving authority.
4. The applicants discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's offenses and his overall record of military service.
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) AR20090017828
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