IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007310 


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 his general discharge to an honorable discharge.

2.  He states he made the mistake of going to see his mother during a medical procedure she was having without taking leave.  This was an emergency and he was young and ignorant.  He did request leave for the two days (Saturday and Sunday) but it was denied.  He was afraid for her health and decided to go anyway as his family is the highest priority he has in life.  He did call his first sergeant to inform him of his [applicant’s] whereabouts.  He did not sense any concern in his first sergeant’s voice and he did return to his post the next day without missing any scheduled duty.  Once he returned, there was a great deal made of his absence leading to his general discharge.  He regrets his decision to leave without permission and he would have done things differently knowing what he knows now.  He loves his family and always will.  He feels this mistake was made out of ignorance on his behalf.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 11 September 1990, for 4 years.  On the date of enlistment in the RA, he was 18 years and 5 months of age.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-2 on 11 March 1991.  

3.  On 9 October 1991, he accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for larceny of an AT&T Calling Card Number and about $1,661.00 in long-distance telephone service by using that calling card number.  He did not appeal the punishment.

4.  In an undated Memorandum for Record his company commander stated the applicant’s counseling records showed a lack of motivation and an inability to perform his duties because of his predisposition with personal matters.  The applicant went absent without leave (AWOL) on 1 July 1991 to go back to New Mexico to be with his family.  He returned to the unit on 16 July 1991.  No punitive action was taken for that offense because the unit felt the applicant had a legitimate family hardship.  The unit immediately began processing paperwork for a hardship discharge for him [the applicant].  The discharge was approved under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 6, for hardship.  The applicant was given a discharge date of 11 September 1991.  The applicant’s counseling records at the unit were destroyed upon the issuance of discharge orders.  The applicant was subsequently charged with larceny and punished under Article 15, UCMJ.  The separation under the provisions of chapter 6 was withdrawn and a chapter 14 separation was directed.

5.  On 17 October 1991, the applicant’s company commander advised him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct, with a general discharge.

6.  On the same date, after consulting with counsel, he acknowledged receipt of the company commander's notification.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also elected not to submit a statement in his own behalf.

7.  On 17 October 1991, the applicant’s company commander recommended separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct, for two specifications of larceny.  The commander recommended issuance of a General Discharge Certificate.

8.  On the same date, the applicant's battalion commander concurred with the company commander's recommendation to separate the applicant.  The battalion commander stated rehabilitation would not have been in the best interest of the Army as it would not have produced a quality Soldier.

9.  On 18 October 1991, the separation authority approved the recommendation for the applicant's discharge and directed issuance of a General Discharge Certificate.

10.  On 25 October 1991, he was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct with a general discharge.  He was credited with completing 1 year and 1 month of net active service.  He also had time lost from 1 to 16 July 1991.

11.  There is no evidence he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, he has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  There is also no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service.

3.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.

5.  In view of the circumstances in this case, 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)                                         AR20100007310



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)