IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100014625 


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 to an honorable discharge.

2.  The applicant states an upgrade would enhance his opportunities for employment and advancement, especially in the field of law enforcement.  It would also give his children greater pride in his contributions to the Army.

3.  The applicant provides civilian employment-related certificates of training and achievement.

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.  With prior active and inactive service in the Reserve components, the applicant enlisted in the Regular Army on 19 March 1993 for 3 years.  Already trained in military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist), he was awarded MOS 92A (Automated Logistical Specialist) and assigned duties at Fort Hood, TX.

3.  At Fort Hood, the applicant initially performed his duties and conducted himself in an acceptable manner; however, in 1995, quickly established a pattern of misconduct.

   a.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties on 11 January 1995.  As punishment, he was given 10 days of extra duty, a suspended reduction from specialist (SPC)/E-4 to private first class (PFC)/E-3), and a suspended forfeiture of $246.00.

   b.  On 23 March 1995, the applicant was involved in a motor vehicle accident while driving a government vehicle.  He was charged with failing to yield the right of way.

   c.  The applicant also received several general counseling statements for failing to go at the time prescribed to his appointed place of duty and failing to pay just debts.

4.  On 21 August 1995, the applicant's unit commander notified him of his intent to discharge him for misconduct under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14.  The applicant consulted with legal counsel and he acknowledged notification of the separation action.  He stated he would provide a statement and he was given time to do so; however, there is no evidence he submitted a statement in his own behalf.

5.  On 28 August 1995, the applicant's commander forwarded the separation action to the approving authority.  On 5 September 1995, the approving authority approved the discharge request and directed the issuance of a general discharge.

6.  The applicant was discharged on 25 September 1995 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He had 2 years, 6 months, and 7 days of net active service this period.


7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 18 February 1997, denied his request.

8.  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.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served satisfactorily for a period of time; however, he began having financial difficulties which resulted in letters of indebtedness being sent to his chain of command for failing to pay just debts.  He became slovenly in his work habits and duty performance; he was administered NJP for dereliction of duty.  He also caused a motor vehicle accident while driving a government vehicle when he failed to yield the right of way.

2.  The applicant's commander determined the applicant's behavior could not be corrected and initiated separation action under Army Regulation 635-200, chapter 14, based on a pattern of misconduct.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  His general discharge is commensurate with his overall record of military service and the level of his misconduct.


3.  The applicant post-service employment accomplishments have been noted; however, these accomplishments do not alter the fact his Army service was less than that required for issuance of an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100014625



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ABCMR Record of Proceedings (cont)                                         AR20100014625



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