BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100012359 


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 general, under honorable conditions discharge be upgraded to honorable. 

2.  The applicant states a retired command sergeant major, who is a representative of the Department of Veterans Affairs, informed him that he could have his discharge upgraded to honorable.  The applicant contends that he is employed with a reputable company and has not had any civil or municipal infractions.  He has been discharged for about 18 years and has not engaged in any illegal activities.

3.  The applicant provides no additional documentation.

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.  On 22 February 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 55B (Nuclear Weapons Specialist).

3.  The applicant was promoted up through the ranks attaining specialist five, pay grade E-5, on 5 March 1984.  On 1 October 1985, he was laterally appointed as a sergeant, pay grade E-5.

4.  The applicant served overseas during the following periods:

	a.  in the Federal Republic of Germany (FRG) from 10 September 1981 to 
3 July 1985;

	b.  in Turkey from 19 January 1987 to 28 January 1988; and

	c.  in FRG from 27 February 1990 to 26 April 1992.

5.  The applicant accepted the following nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice:

	a.  on 19 November 1991, for operating a passenger car in a reckless manner while drunk, resulting in loss of control and striking seven guardrails, and for being disrespectful in language towards a noncommissioned officer; and

	b.  on 6 January 1992, for breaking restriction and wrongfully appropriating a Volkswagen Transport.

6.  On an unknown date, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense.  The commander cited the applicant's two NJP's discussed above as justification for his recommendation.

7.  The applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge under honorable conditions.



9.  Accordingly, on 27 April 1992, the applicant was discharged under honorable conditions.  He had completed 12 years, 2 months and 6 days of creditable active duty service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Under the UCMJ, the maximum punishment allowed for drunken driving includes a bad conduct discharge and confinement for 6 months.  Wrongful appropriation of a motor vehicle includes a dishonorable discharge and confinement of 2 years.

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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he has not had any civil or municipal infractions since his discharge and is employed with a reputable company.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant’s unsubstantiated claim of good post-service conduct and employment is insufficient to mitigate his repeated acts of indiscipline during his military service.   

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)                                         AR20100012359





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ABCMR Record of Proceedings (cont)                                         AR20100012359



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