IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100009280 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that it has been 12 years since he was discharged from the military.  He is now a parent of two children and their role model.  The applicant states that he wants to have an opportunity to regain his honor and learn from his mistakes to pass it on to his children since they are already talking to him about the importance of joining the greatest Armed Forces on this planet.

3.  The applicant provides no additional documentation in support of this case.

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 16 February 1996 and successfully completed basic and advanced individual training.  He was awarded military occupational specialty 62B (Construction Equipment Repairman).

3.  On 11 December 1996, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for stealing.

4.  On 6 March 1998, the applicant accepted NJP under Article 15, UCMJ, for stealing.

5.  On 26 March 1998, the applicant's commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for patterns of misconduct.  The reasons cited by the commander were the applicant's committing larceny, failing to be at his appointed place of duty on several occasions, damaging government property, disobeying lawful orders, failing to pay debts, and violating the barracks visitation policy.

6.  On 26 March 1998, the applicant was advised by consulting counsel of the basis for the contemplated separation action and the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14.  The applicant requested counsel, waived his right to an administrative board, and elected not to submit a statement on his own behalf.

7.  The separation authority approved the elimination packet and directed that the applicant receive an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  On 29 April 1998, the applicant was discharged from the service in pay grade E-1 after completing 2 years, 2 months, and 14 days of creditable active service.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 January 2000, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.

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's post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a discharge and is not sufficient to mitigate his indiscipline while in the Army.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows he received two Article 15's, he committed larceny, he failed to be at his appointed place of duty on several occasions, he damaged government property, he disobeyed lawful orders, he failed to pay debts, and he violated the barracks visitation policy.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or honorable discharge.


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)                                         AR20100009280



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR