IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012633 


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 be upgraded to honorable.

2.  The applicant did not provide a reason for this request.

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

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 September 1976 and upon completion of initial training was awarded military occupational specialty 64C (Motor Transport Operator).  After serving through three reenlistments, he again reenlisted on 28 September 1990.

3.  He accepted nonjudicial punishment on the following occasions:

	a.  on 12 October 1989 for two instances of being disrespectful in language towards a noncommissioned officer (NCO), communicating a threat to an NCO, and assaulting an NCO;

	b.  on 9 July 1990 for being derelict in the performance of his duties; 

	c.  on 6 February 1991 for failing to go at the time prescribed to his appointed place of duty, being disrespectful towards a commissioned officer, being disrespectful towards an NCO, striking an NCO by pushing him upon his body with his hands, and for unlawfully grabbing another Soldier around the throat with his hands.

4.  On 6 March 1991, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12c for misconduct (commission of serious offenses) with a general, under honorable conditions discharge.  He was informed the reasons for the proposed action were his being disrespectful towards commissioned officers and NCO's, his communication of a threat to an NCO, assault on an NCO and a Soldier, and dereliction of his duties.

5.  The applicant consulted with legal counsel and waived consideration of his case by an administrative separation board.  He also elected not to submit a statement in his own behalf.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He understood that if he received a discharge less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

6.  The unit commander submitted his recommendation through the appropriate chain of command.  The applicant's battalion commander recommended approval of the separation action and issuance of a General Discharge Certificate.

7.  On 29 March 1991, the appropriate authority approved the recommendation and directed he be issued a General Discharge Certificate.  On 5 April 1991, he was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Misconduct - Commissioned of a Serious Offense."

8.  Records show the applicant applied to the ADRB for an upgrade of his discharge.  On 3 December 1996, the ADRB determined an administrative error was made when completing his DD Form 214 and unanimously voted to change the reason for his discharge to "Misconduct."  However, the ADRB determined that his discharge was proper and equitable and unanimously voted to deny his request for an upgrade of his discharge.  By letter, dated 3 December 1996, he was duly notified of the board's decision.

9.  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.

10.  Under the Uniform Code of Military Justice, the maximum punishment allowed for assault upon an NCO is a bad conduct discharge and confinement for 6 months.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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's request for a discharge upgrade has been carefully considered.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  His record of indiscipline includes behaving with disrespect towards commissioned officers and NCO's on various occasions, communicating a threat to an NCO, dereliction of his duties, and assault upon an NCO and another Soldier.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  Based on the above, there is no basis to grant 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)                                         AR20100012633



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012633



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1