IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010 

		DOCKET NUMBER:  AR20090021575 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was assaulted at a bar in Germany on 28 July 1990. He contends that private first class (PFC) T------- punched him in the face, busting his eye and nose for no reason.  PFC T------- started the fights but the investigating officer believed PFC T-------'s buddies and he ended up getting the discharge for misconduct.  He adds that he did not start the fights but every Soldier's misconduct at the bar was placed on him.

3.  The applicant provides 5 self-authored statements and several sworn statements related to the 28 July 1990 event.

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 18 October 1988.  He completed initial entry training and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  The applicant's Official Military Personnel File (OMPF) contains DA Forms 4856 (General Counseling Form) that revealed he received two negative counseling statements for sleeping while guarding his platoon's equipment on 
19 January 1990 and for insubordination to a higher ranking Soldier on 10 July 1990.  He also received a Letter of Reprimand from his unit commander for the insubordination incident.

4.  His OMPF also contains a U.S. Army Criminal Investigation Command's (USACIDC) Report of Investigation - Final, that revealed he, along with another Soldier, were under investigation for conspiracy to distribute a controlled substance (hashish) to a covert Drug Suppression Team (DST) Investigator.  The USACIDC final report also shows that during questioning, he admitted to trying to obtain the controlled substance for the DST.  Paragraph 5 of the Report of Investigation states that coordination with Office of the Staff Judge Advocate (OSJA) indicated that sufficient probable caused existed to believe they committed the offenses of wrongful possession and distribution of hashish and conspiracy.  The action taken by his commander as a result of the investigation, if any, is unknown.

5.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status) shows that while at a bar on 28 July 1990, the applicant became engaged in a fight with another Soldier in which he received a laceration to his neck.  The investigating officer, after reviewing the testimony from witnesses, concluded that the applicant was at fault for causing the injury-related fight and that his actions were not in the line of duty but were due to his own misconduct.  He was advised by the investigating officer of the outcome of the investigation, he was provided the opportunity to review the evidence used in the investigation, and he was invited to submit a statement in his own behalf.  He was also advised that if he desired to make a statement, it would be taken into consideration before a final determination was made.  There is no indication he submitted such statement.

6.  On 6 November 1990, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense) with a general discharge.  

He was informed the reason for the proposed action was that he assaulted another Soldier in the face with a closed fist.

7.  On 8 November 1990, the applicant consulted with legal counsel and elected not to submit a statement in his own behalf.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He understood that if he received a discharge less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

8.  The unit commander submitted his recommendation through the appropriate chain of command.  The applicant's battalion commander recommended approval of the separation action and issuance of a General Discharge Certificate.

9.  On 21 November 1990, the appropriate authority approved the recommendation and directed he be issued a General Discharge Certificate.  On 28 November 1990, he was discharged accordingly.  Item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c(2).  Item 26 (Separation Code) shows the entry "JKK."  Item 28 (Narrative Reason for Separation" shows the entry "Misconduct - Drug Abuse."

10.  Records show that on 21 June 1991, the applicant applied to the ADRB for an upgrade of his discharge and a change to the narrative reason for separation. On 4 October 1993, based on a records review, the ADRB determined an administrative error was made when completing his DD Form 214 and unanimously voted to change the reason for his discharge to "Misconduct - Commission of a Serious Offense."  However, the ADRB determined that his discharge was proper and equitable and unanimously voted to deny his request for an upgrade of his discharge.  By letter, dated 15 November 1993, the applicant was duly notified of the board's decision.

11.  Records show that on 3 May 1994, a DD Form 215 (Correction to DD Form 214) was issued that entailed the following changes:

* item 25 changed to "Para 14-12c, AR 635-200"
* item 26 changed to "JKQ"
* item 28 changed to "Misconduct - Commission of a Serious Offense"

12.  Records further show the ADRB Proceedings and DD Form 215 were sent to the same address as annotated by the applicant on his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 21 June 1991, and on his DD Form 214 for the period ending 28 November 1990.

13.  The applicant provided self-authored statements in which he strongly denies that the events that led to his discharge were a result of his own misconduct.

14.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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 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 regulation.

15.  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's contention that his discharge should be upgraded because he was not responsible for the events that led to his discharge has been carefully considered.

2.  While he argues that the incident which led to his discharge was not caused by his misconduct, a line of duty investigation was conducted and concluded that the incident was indeed as a result of his misconduct.  He was provided the 

opportunity to submit a statement in his own behalf and explain his side of the story; however, there is no indication that he took the opportunity to do so.  He was again provided the opportunity by his commander to submit a statement during his separation process.  There is no indication he submitted such statement.

3.  The applicant's good service during the initial portion of his enlistment was considered.  However, a thorough review of his entire record revealed he received negative counseling statements for sleeping while guarding his platoon's equipment and for insubordination and a letter of reprimand.  He was also under a USACIDC investigation for conspiracy to distribute a controlled substance.  It must be emphasized that the OSJA indicated that sufficient probable caused existed to believe the offenses of wrongful possession and distribution of hashish and conspiracy were committed.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This record of misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20090021575



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ABCMR Record of Proceedings (cont)                                         AR20090021575



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