IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100016242 


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 an upgrade of his general discharge to an honorable discharge.

2.  The applicant states the following:

* He was a dedicated Soldier and still is 
* He enlisted to pay a debt to the United States of America because he loves this country.  The reality of the negative consequences of his “ego trip” 6 months before his expiration term of service (ETS) date was heartfelt on 11 September 2001, when his beloved country was attacked
* On 29 September 2001, he was denied reentry in the service 
* He decided to give his life to his country in 1987, and he aimed to be the best Soldier he could be 
* In basic combat and advanced individual training he became a platoon leader  
* At his first duty station he received commendations and record set promotions  
* At his last duty station he became the assistant gunner of his section and he was the acting section chief for 6 weeks, and during this time his section received “best section” honors 6 weeks in a row  
* The trouble began when he was asked to unload the section’s cargo carrier by his gunner in a manner which he understood at the time to be unlawful, and he disobeyed it 
* After this initial incident he lost positive prospective of the issue and allowed the situation to gradually escalate to the point of no return
* His unit’s leadership at the time tried to counsel him.  He made the wrong decision on good advice and wants to apologize to America and the U.S. Army for all the time, money, and human capital expended on his case.  He requests that the Board forgive him and be merciful 

3.  The applicant provides a self-authored letter and his current biography.

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 for a period of 3 years on              4 February 1987.  Records show the applicant was 19 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty 13B (Cannon Crewmember).  The highest grade the applicant attained was specialist/pay grade E-4.  

3.  On 10 August 1989, the applicant was convicted by a special court-martial of three specifications of disobeying a noncommissioned officer (NCO) and one specification of being disrespectful towards an NCO.  He was sentenced to be reduced to private/pay grade E-1 and confined for 3 months.

4.  On 18 October 1989, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct-commission of a serious offense.  The company commander stated the reason for his recommendation was the applicant’s conviction by a special court-martial for disobeying and being disrespectful towards an NCO and failing to go at the prescribed time to his appointed place of duty. 

5.  On 18 October 1989, the applicant refused to sign the acknowledgment receipt of notification of separation action against him.  The applicant was afforded the opportunity to consult with counsel.  The applicant voluntarily waived consideration of his case by an administrative separation board.  The applicant acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  

6.  The appropriate authority approved the applicant’s separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense and directed the issuance of a general discharge.

7.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 13 November 1989 under the provisions of Army Regulation 635-200, chapter 14, for misconduct-commission of a serious offense.  At the time he had completed 2 years, 6 months, and 11 days of net active service this period. 

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

9.  In support of his request the applicant provides a self-authored letter and his current biography.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct, commission of a serious offense.  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 the issuance of an honorable discharge under this provision of regulation.

11.  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’s contends his general discharge should be upgraded to an honorable discharge, because he was a dedicated Soldier and he loves his country. 

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  The evidence of record clearly shows the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Moreover, the applicant's overall quality of service during the period under review was not satisfactory and he is not entitled to an honorable discharge.

3.  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 type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the above, 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)                                         AR20100016242



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ABCMR Record of Proceedings (cont)                                         AR20100016242



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