IN THE CASE OF:	

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021938 


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 characterized as under other than honorable conditions be upgraded.  

2.  The applicant states that he had one isolated incident in over 8 years of honorable service. 

3.  The applicant provides a copy of his DA Form 2-1 (Personnel Qualification Record). 

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 record shows he enlisted in the Regular Army and entered active duty on 14 June 1984.  
3.  On 8 June 1990, nonjudicial punishment (NJP) was imposed against the applicant for falsifying a DA Form 705 (Physical Training (PT) Card).  His punishment consisted of reduction to the grade of E-4 (suspended), 45 days of extra duty (suspended), 45 days of restriction, and a forfeiture of $539.00 pay for 2 months with 1 month suspended.  On 1 November 1990, the applicant's suspension was vacated.

4.  On or about 15 May 1992, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c.  The commander listed a Field Grade Article 15 on 8 June 1990 for falsifying a PT score card and a Company Grade Article 15 on 7 November 1990 for failure to pay just debts as the applicant's record of disciplinary actions.  Additionally, he said the applicant was accused of unlawfully killing another person.  He added that his action demonstrated that of a person who, heedless of the probable consequence of his actions, inflicted grievous bodily harm on another individual resulting in her death. 

5.  On 15 May 1992, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, the applicant waived his rights.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if an Under Other Than Honorable Conditions Discharge was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

6.  On 28 May 1992, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed that the applicant be furnished an Under Other Than Honorable Conditions Discharge.

7.  The applicant's DD Form 214 shows that he was discharged on 1 July 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with a characterization of service of under other than honorable conditions.  The applicant was credited with completing 8 years and 18 days of active service.  

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge is normally appropriate for a member who is discharged for acts and patterns of misconduct.

10.  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.  The applicant states, in effect, that his discharge should be upgraded because he had one isolated incident in over 8 years of honorable service.  However, the applicant neglected to explain that the one isolated incident resulted in the death of an individual.  Further, the applicant's record shows that he received two NJPs in 1990 -- one for falsifying a PT score card and the other for failure to pay just debts. 

2.  There is no evidence and the applicant has failed to provide any to show that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  In fact, the applicant makes no comments on his actions that led to his administrative discharge for misconduct.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090021938





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ABCMR Record of Proceedings (cont)                                         AR20090021938



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