IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014545 


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 "other than honorable" discharge be upgraded to an honorable discharge (HD).  (He did not receive an "other than honorable" discharge; he received a general discharge (GD)).

2.  The applicant states, in effect, he desires a discharge upgrade so he can find a better job.

3.  The applicant provides no documentation 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 26 February 1992.  He was trained in and awarded military occupational specialty 94B (Food Service Specialist).  

3.  General Counseling Forms in the applicant's record show he received counseling for the following reasons:

* riding in a vehicle driven by an intoxicated noncommissioned officer (NCO) and failing to attempt to take away the NCO's keys
* being arrested and charged with theft at the post exchange (PX)
* driving without a U.S. Army Europe (USAREUR) driver's license
* not showing up for extra duty in proper uniform and, after being sent to put on the proper uniform, not returning to duty

4.  On 27 September 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* falsely pretending to be the owner, or to have authorization to use, another Soldier's AT&T calling card and wrongfully obtaining services of a value of about $486.83
* violating a lawful regulation by wrongfully operating a privately owned vehicle (POV) without a valid driver's license

5.  On or about 13 December 1993, the applicant's commander informed him she was initiating action to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14-12b.  His commander listed the following reasons for the proposed action:

* he was arrested on 21 December 1992 for shoplifting in the PX
* He used someone else's calling card to make calls to relatives between 29 January and 10 February 1993
* he was arrested for operating a POV without a USAREUR driver's license.
* he failed to show up in the proper uniform for extra duty on 4 October 1993, and when sent to get into the proper uniform never returned to extra duty

6.  The applicant acknowledged receipt of the notification of intent to initiate separation action, he consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct and its effect.  He was advised of the rights available to him, the effect of any action taken by him in waiving his rights, the types of discharge he could be given, and the effect of the separation action on further enlistment or reenlistment.  He elected not to submit statements in his behalf.

7.  On 14 December 1993, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed he receive a GD.  On 7 January 1994, the applicant was discharged accordingly.  He completed 1 year, 10 months, and 12 days of total active military service.

8.  On 13 August 1997, the Army Discharge Review Board (ADRB) informed the applicant that his request for a change in the character of and/or reason for his discharge was denied.

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 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 GD if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge (HD) or delegate approval authority for an HD under this provision of regulation.

10.  Army Regulation 635-200, paragraph 3-7a provides that an HD 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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that 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 HD.  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 an upgrade of his discharge to an HD.

2.  The applicant has not provided any evidence and the available record does not contain any evidence of irregularities in the discharge process or evidence that his rights were not protected throughout the separation proceeding.

3.  Based on his record of indiscipline, which includes accepting NJP for wrongfully using another Soldier's calling card to make nearly $500 in calls and operating a POV without a driver's license 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 insufficiently meritorious to warrant an HD.  

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)                                         AR20100014545



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ABCMR Record of Proceedings (cont)                                         AR20100014545



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