IN THE CASE OF:	  

		BOARD DATE:	 10 November 2010

		DOCKET NUMBER:  AR20100014916 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he was given no reason for his discharge, only that he was given a choice to stay in Korea or leave the Army.  The applicant states there are no grounds for discharge.

3.  The applicant provided no additional documentary evidence.

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's record shows he enlisted in the U.S. Naval Reserve (USNR) on 2 May 1985.  On 30 September 1992, he was separated from the USNR.  The applicant enlisted in the Regular Army on 1 October 1992 for a period of 4 years. The applicant completed advanced individual training and he was awarded military occupational specialty 63D (Self-Propelled Field Artillery System Mechanic).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E4.

3.  Records show the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

	a.  on 17 December 1993, for violating a lawful general regulation (exceeding his authorized monthly purchasing limit of alcohol) on or about 23 November 1993; and

	b.  on 6 September 1994, for larceny (stealing a television from another Soldier) on or about 17 June 1994. 

4.  On 15 September 1994, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense.

5.  On 17 September 1994, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by and personal appearance before an administrative separation board.  He also elected not to make any statements in his own behalf.

6.  On 12 October 1994, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant receive an under other than honorable conditions discharge.  On 3 November 1994, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged by reason of misconduct.  He completed a total of 2 years, 4 month, and 22 days of total active service.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
8.  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, 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.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 applicant's request that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Although it has been 16 years since the applicant's discharge, the passage of time does not diminish his misconduct during his period of service.

4.  Based on his record of indiscipline, including instances of misconduct, the applicant's 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 or a general discharge.

5.  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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100014916



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