IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100013431 


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 upgrade of his general discharge.

2.  The applicant states he would like an upgrade in order to get a better job.  He states that in most of his jobs the companies closed or were cutting back and he is now again looking for work.  He adds that he has not been in any trouble since his discharge.  He further adds that he is not working at this time and would like to apply for a Government job.

3.  The applicant provides no additional documents.

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 12 August 1983.  He completed initial entry training and was awarded military occupational specialty 63H (Track Vehicle Repairer).  On 29 May 1987, he reenlisted for 3 years.

3.  He received nonjudicial punishment on the following occasions:

	a.  on 14 November 1988 for operating a passenger car while drunk;

	b. on 8 August 1989 for willfully damaging military property, assault, and failing to go at the time prescribed to his appointed place of duty; and

	c.  on 16 December 1989 for assault.

4.  A DA Form 4856 (General Counseling Form), dated 25 September 1989, shows the applicant was counseled on his duty performance and misconduct on several occasions during the period 4 December 1987 to 14 September 1989.

5.  On 10 October 1989, he underwent a mental status evaluation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14.  He was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He was cleared for any administrative action deemed appropriate by his command.

6.  On 30 October 1989, 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, paragraph 14-12c for misconduct - commission of serious offenses, with a general discharge.  He was informed that the reasons for the proposed separation action were his drunken driving offense, his assault on his spouse, and the damage to military property.

7.  On 30 October 1989, he consulted with legal counsel and he 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 less than honorable discharge, 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.

8.  On 6 November 1989, the appropriate separation authority approved the recommendation and directed the issuance of a general discharge.  On 
17 November 1989, 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 – Commission of a Serious Offense."

9.  There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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, 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 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, 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; however, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for employment benefits.

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights 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 nonjudicial punishment for drunken driving, assault, damage to Government property, and several negative counseling sessions because of his performance and misconduct.  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)                                         AR20100013431



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ABCMR Record of Proceedings (cont)                                         AR20100013431



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