IN THE CASE OF:	  

		BOARD DATE:	6 July 2010  

		DOCKET NUMBER:  AR20100000299 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states his discharge was supposed to be upgraded 6 months after his discharge.  He also states he was a good Soldier.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 January 1990.

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 9 March 1985 and held military occupational specialty 63W (Wheel Vehicle Repairer).  He also executed a 4-year reenlistment on 27 September 1988 and attained the rank/grade of specialist four/E4. 

3.  His records also show he served in Germany from 16 September 1985 to 5 September 1987 and he was subsequently assigned to the 556th Maintenance Company, Fort Riley, KS.  

4.  His awards and decorations include the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  On 19 May 1989, he pled not guilty at a summary court-martial to one specification of wrongfully using marijuana between 19 December 1988 and 18 January 1989.  The court found him guilty and sentenced him to a reduction to private/E-1 and confinement for 21 days.  He was subsequently confined at Fort Riley from 19 May 1989 to 5 June 1989.

6.  On 10 October 1989, he was again confined at Fort Riley, KS, and he was released on 2 November 1989.  The causes/reasons for this confinement are not available with this case. 

7.  On 21 December 1989, he was arrested by the Fort Riley Military Police for aggravated assault and driving under the influence (DUI) of alcohol.  An investigation determined he was involved in a fight with an unknown individual in the company barracks and that he suffered facial contusions.  A subsequent line of duty investigation determined that his injury was not in line of duty - due to his own misconduct.

8.  The facts and circumstances of his discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 4 January 1990 under the provisions of paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct - commission of a serious offense (abuse of illegal drugs) with an under other than honorable conditions characterization of service. This form also shows he completed a total of 4 years, 8 months, and 16 days of creditable active service and he had 40 days of lost time.

9.  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.

10.  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 regulation.

11.  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 contends that his under other than honorable conditions discharge should be upgraded. 

2.  The applicant’s record is void of the specific and complete facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 4 January 1990 under the provisions of paragraph 14-12(c) of Army Regulation 635-200 for misconduct - abuse of illegal drugs with an under other than honorable conditions discharge.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were presumably fully protected throughout the separation process.  It is also presumed that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

4.  The applicant’s contention that his discharge should have been upgraded 6 months later lacks merit as the Army has never had a policy where a discharge is upgraded due to passage of time.  Additionally, the available evidence shows a military career marred with misconduct, including a summary court-martial, two instances of confinement, and an arrest for assault and DUI.  As a result, contrary to his contention, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to a general discharge.

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)                                         AR20100000299



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ABCMR Record of Proceedings (cont)                                         AR20100000299



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