BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018560 


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 that his discharge under other than honorable conditions be upgraded to honorable.  Additionally, he requests that his military occupational specialty (MOS) be changed to MOS 96R (Surveillance Communication Operator) in lieu of MOS 96B (Intelligence Analyst).  

2.  The applicant states, in effect, he was young and immature at the time of separation.  He further states he did not qualify for MOS 96B because he did not attend this MOS school.    

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 6 April 1988 at the age of 20 years and 10 months.  He completed basic and advanced individual training at Fort Huachuca, AZ.  Orders Number 148-9, dated 1 August 1988, shows his primary MOS as 96R10.  This same order directed his permanent change of station and assignment to Headquarters, 110th Military Intelligence Battalion at Fort Drum, NY.  

3.  The applicant's official military personnel file (OMPF) shows the applicant received six general counseling statements from his chain of command for noncompliance with military uniform standards, poor personal hygiene habits, personal financial mismanagement, failure to obey the lawful orders of superior noncommissioned officers, and continued failure to adapt to military life.  Accordingly, on 27 September 1988, he was counseled that administrative separation action would be initiated under the provisions of Army Regulation 
635-200.

4.  On 5 October 1988, the applicant was found medically qualified for separation.  The applicant's mental health evaluation shows he had the mental capacity to understand and participate in separation proceedings, that he was mentally responsible, and he meet the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 11 October 1988, the applicant pled guilty in civilian court to possessing burglary tools and larceny.  He was sentenced to civilian confinement for 60 days and fined $500.

6.  On 13 October 1988, a bar to reenlistment was imposed against the applicant.

7.  On 3 November 1988, the applicant's commander notified him that action was being initiated to separate him from the Regular Army due to commission of a serious offense based on his civilian conviction and subsequent sentence for possession of burglary tools and larceny on 11 October 1988.  

8.  The commander advised the applicant of his right to be represented by counsel, to request a hearing before an administrative separation board or to submit written statements in his own behalf, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant that the proposed separation action could result in an under other than honorable conditions discharge.  The applicant acknowledged receipt of his elimination notification.

9.  Accordingly, the applicant met with counsel.  He requested consideration of his case by an administrative separation board and a personal appearance before said board.  He acknowledged that his willful failure to appear before this separation board without good cause would constitute a waiver of his rights.  He elected not to submit personal statements.  Additionally, the applicant indicated that he understood that he could encounter extreme prejudice in civilian life with an under other than honorable conditions discharge.  He further indicated he understood that his separation under other than honorable conditions could deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a Veteran under both Federal and State laws.

10.  On 8 November 1988, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 due to commission of a serious offense that was punishable under the Uniform Code of Military Justice (UCMJ), which rendered him unsuitable for continued military service.  The commander recommended discharge under other than honorable conditions.

11.  On 18 November 1988, the applicant signed a second statement waiving his right to have his case heard before a separation board.  He acknowledged that his willful failure to appear before the administrative separation board without good cause would constitute a waiver of his rights to a personal appearance before said board.  He further acknowledged he understood his rights inherent in the separation process.

12.  The applicant's intermediate commanders recommended him for discharge due to misconduct, commission of a serious offense, and recommended a discharge under other than honorable conditions.  

13.  On 18 November 1988, the approval authority waived the rehabilitative requirements and directed the applicant be discharged from the service with an under other than honorable conditions characterization of service. 

14.  On 6 December 1988, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct, commission of a serious offense.  Upon his discharge, he received a DD Form 214 showing in item 11 (Primary Specialty, Title and Years and Months in Specialty) the entry "96B10 Intelligence Analyst 00 YRS and 03 MOS (months)."  Additionally, Item 14 (Military Education) shows he attended an Intelligence Analyst Course for 6 weeks in August 1988.  

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations.

16.  References:

	a.  Army Regulation 611-201 (Enlisted Career Management Fields and Military Occupational Specialties) shows, in pertinent part, the title associated with MOS 96R is Ground Surveillance Systems Operator. 

	b.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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 the regulation.

	c.  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 is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	d.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.






DISCUSSION AND CONCLUSIONS:

1.  Based on the publication of orders and available evidence, the applicant attended Ground Surveillance Systems Operator school at Fort Huachuca, AZ and was awarded primary MOS 96R.  Therefore, he is entitled to correction of his DD Form 214 to show his MOS as 96R and the appropriate title as Ground Surveillance Systems Operator. 

2.  Additionally, the applicant contends that his discharge should be upgraded because he was young and immature at the time of separation.  This is not sufficiently mitigating, he was 21 years old when he was separated.  Therefore, he was no younger than other Soldiers who successfully completed their service obligations.

3.  Based on the evidence of record, the applicant's chain of command was in the process of recommending that the applicant be administratively discharged due to failure to meet acceptable military standards and conduct during his first
2 months of assignment to the 110th Military Intelligence Battalion.  However, he pled guilty in a civilian court to charges of possessing burglary tools and larceny.  His punishment included confinement for 60 days by civilian authorities and a civil fine of $500.  Accordingly, separation action was initiated against the applicant under the provisions of chapter 14-12c, Army Regulation 635-200, due to commission of a serious offense.

4.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available records contain no evidence of procedural or other errors that would have jeopardized his rights.

5.  The applicant's record of service was considered and it is evident that he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  deleting the current entry in item 11 of his DD Form 214 with a separation date of 6 December 1988; and

	b.  adding the following entry "96R1O GROUND SURVEILLANCE SYSTEMS OPERATOR 00 YRS AND 03 MOS//NOTHING FOLLOWS."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable. 




      _______ _   __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)                                         AR20090018560



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ABCMR Record of Proceedings (cont)                                         AR20090018560



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