IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012727 


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 to an honorable discharge.  

2.  The applicant states his commander took his actions for misconduct personal and judged him without compassion or afforded him any help with his problems.

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.  The applicant had prior service in the South Carolina Army National Guard.  On 11 March 1987, he enlisted in the Regular Army and was awarded military occupational specialty 16S (MANPADS Crewman).  

3.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 19 July 1988 for failure to be at his appointed place of duty
* 1 August 1988 for waking up late in the morning and for failure to be at his appointed place of duty
* 20 December 1988 for jumping his chain of command and for making a counterfeit statement
* 4 January 1989 for failure to follow instructions
* 15 February 1989 for failure to be at his appointed place of duty
* 20 February 1989 for driving while intoxicated (DUI) on post and failure to follow instructions

4.  On 9 March 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk.

5.  The applicant's record reveals additional disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 9 March 1989 for failure to follow instructions
* 17 April 1989 for being absent from formation

6.  On 19 April 1989, the applicant accepted NJP under Article 15, UCMJ for three specifications of failure to be at his appointed place of duty.

7.  On 2 May 1989, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.  The reasons cited by the commander were the applicant receiving a field grade Article 15 for a DUI and reporting late for extra duty on five different occasions.

8.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  He was advised of 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.  He requested counsel, waived his right to an administrative board, and elected not to submit a statement on his own behalf.
9.  On 3 May 1989, the separation authority approved the elimination packet and directed the applicant receive an under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct.  On 
9 May 1989, the applicant was discharged from the service, in pay grade E-1, after completing 2 years, 1 month, and 29 days of creditable active service during the period under review.

10.  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. 

11.  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 commander took his actions for misconduct personal and judged him without compassion or afforded any help with his problems.  However, there is no evidence and the applicant has not provided evidence that shows his commander took his actions for misconduct personal and judged him without compassion or afforded any help with his problems.  In addition, there is no evidence that he sought assistance from his chain of command or chaplain or other support channels to assist him with his problems prior to discharge.  Therefore, there is no basis for this argument.

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

3.  The applicant's records show that he received two Article 15's and he had several general counselings.  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 issuance of an 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)                                         AR20100012727





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ABCMR Record of Proceedings (cont)                                         AR20100012727



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