IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100012746 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge (GD).

2.  The applicant states he was never absent without leave (AWOL) and was never given a chance to prove himself.  He wants to prove himself to his country.  

3.  The applicant provides no documents in support of his request.

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 3 December 1990.  He was trained in and awarded military occupational specialty 94B (Cook).

3.  The applicant's record shows he was counseled on numerous occasions for various forms of indiscipline.  A DA Form 4856 (General Counseling Form) signed by the applicant on 11 May 1993 shows his first sergeant counseled him for the following:

* from 30 October to 2 November 1992, he was AWOL
* on 23 November 1992, he failed to pay a utility company bill in the amount of $611.61
* on 22 January 1993, he rented a car in another Soldier's name and did not pay for it
* on 25 February 1993, he was disrespectful and threatened other Soldiers
* on 10 March 1993, he:
* was disrespectful and disobeyed a lawful order
* threatened two individuals
* was disrespectful to the noncommissioned officer who was in charge
* on 11 March 1993, a loaded weapon was found in his car
* on 12 March 1993, he was picked up for terroristic threats and acts
* from 6 to 7 April 1993, he was AWOL

4.  On 26 May 1993, the applicant underwent a mental status evaluation because he was being considered for discharge for misconduct.  He was found to have the mental capacity to understand and participate in the proceedings, met retention requirements, and was cleared for administrative action.

5.  On 28 June 1993, the applicant acknowledged receipt of his commander's notification that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  His commander also informed him he was recommending his service be characterized as UOTHC.  

6.  On 13 July 1993, the applicant consulted with legal counsel, and he was advised of the basis for the contemplated separation for a pattern of misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He indicated that he would waive consideration of his case by an administrative separation board (ASB) if he received no less than a GD.  He submitted a statement on his own behalf requesting approval of a GD 


on the basis that with a UOTHC discharge he would lose the money he had invested toward education benefits.  

7.  On 6 August 1993, the applicant again consulted with legal counsel and he was again advised of the basis for the contemplated separation for a pattern of misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  He waived his rights to consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and his right to submit statements on his own behalf.

8.  On 25 August 1993, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed that his service be characterized as UOTHC.  On 1 September 1993, the applicant was discharged accordingly.  He completed 2 years, 8 months, and 16 days of total active military service.

9.  On 16 July 1997, the Army Discharge Review Board informed the applicant his request for upgrade of his discharge was denied.

10.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  Army Regulation 635-200, paragraph 3-7b, states a GD 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 evidence of record does not support the applicant's request for upgrade of his UOTHC discharge to a GD.

2.  The applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes being AWOL, threats against other Soldiers, and financial irresponsibility, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a GD.

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)                                         AR20100012746





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ABCMR Record of Proceedings (cont)                                         AR20100012746



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