IN THE CASE OF:	

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090020461 


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 an upgrade of his general under honorable conditions discharge to fully honorable.

2.  The applicant states he served honorably for 4 years and completed his initial enlistment.  His discharge was a result of marital problems.  However, he has since received help resolving this problem.  Part of the issue at the time was his wife's behavior and later when she was unwilling to cooperate with authorities in an incident that occurred in base housing.  He was unaware that his character of service would be a stigma and potentially affect his eligibility for benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 June 1994 and a copy of his resume 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 for a period of 4 years on 11 May 1989 and held military occupational specialty 63S (Heavy Wheel Vehicle Mechanic).  He also executed a 6-year reenlistment on 11 April 1991.  He was promoted through the ranks to specialist four/E-4.

3.  His records also show he awarded the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Driver and Mechanic Badge (Mechanic), Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records contain multiple counseling statements by different members of his chain of command for various infractions including failure to be at the appointed place of duty, bad checks, missing formation, failure to pay debt, unsatisfactory performance, public intoxication, and other misconduct.

5.  During January and February 1994, he was the subject of several military police reports regarding various instances of misconduct including being involved in a physical altercation with two other individuals and assault and aggravated assault (domestic disturbance) related to his wife.

6.  On 11 May 1994, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  Specifically, he cited his various instances of failure to pay debt, writing bad checks, assault on his wife after an argument, public intoxication, and pounding on a residence door while making verbal threats.  He recommended a general discharge.

7.  On 11 May 1994, he acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and was advised of the basis for the contemplated separation action 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 requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  On 11 May 1994, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for a pattern of misconduct.

9.  On 12 May 1994, he submitted a request for a conditional waiver in which he voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general under honorable conditions.  He further elected not to submit a statement on his own behalf.

10.  On an unknown date, his intermediate commander recommended approval of the discharge with the issuance of an under honorable conditions character of service.

11.  On 17 May 1994, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished a general under honorable conditions discharge.  Accordingly, he was discharged on 24 June 1994.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under honorable conditions character of service.  This form confirms he completed a total of 5 years, 1 month, and 14 days of creditable military service.

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

13.  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 included 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 could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of misconduct for various infractions ranging from missing formation and writing bad checks to public intoxication and aggravated assault.  As a result, his chain of command initiated separation action against him.

3.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the underlying reason for the applicant's discharge was his misconduct.

4.  His contention that he was unaware of the implications of this type of discharge is without merit because he consulted with counsel and he was advised of the impact of his actions.  He acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090020461



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ABCMR Record of Proceedings (cont)                                         AR20090020461



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