IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016363 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he was not provided an opportunity for legal counsel and the ramifications of his discharge were not explained.  He goes on to state he was discharged under false pretenses and was told it was simply an "early out."  He goes on to state he was unaware he was signing away his veterans' benefits.  He further states he was told his discharge would automatically upgrade after 6 months and the fact that it did not has haunted him ever since.  He also states that if the discharge packet is reviewed objectively, it will show a young man who was completely honest and accepted what he had done wrong, but was then set up for his own folly.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 29 August 1971 and enlisted in the Regular Army in Miami, Florida, on 18 July 1990 for a period of 4 years and 18 weeks and training as a combat engineer.  He completed one-station unit training at Fort Leonard Wood, Missouri, and was transferred to Fort Carson, Colorado, for his first and only duty assignment.

3.  During the period 21 May 1991 to 15 December 1991, nonjudicial punishment was imposed against him on three separate occasions for offenses ranging from failure to repair, breaking restriction, wrongful consumption of alcohol, wrongfully signing an official record, and making a false official statement.

4.  The applicant also received negative counseling statements for failure to repair on seven occasions, writing bad checks, sleeping on duty, disobeying a noncommissioned officer, and failure to pay just debts.

5.  On 24 February 1992, the applicant's commander notified him that he was initiating action to separate him under the provisions of Army regulation 635-200 (Personnel Separations), chapter 14, for a pattern of misconduct.  He cited the applicant's disciplinary record, his failure to respond to numerous counseling sessions, and his failure to pay just debts as the basis for his recommendation.  He also advised the applicant he was recommending that he be discharged under other than honorable conditions.

6.  On 25 February 1992 after consulting with defense counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights in return for a characterization of service of no less favorable than under honorable conditions (general discharge).  He also indicated in his request that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood that he might be ineligible for many or all benefits as a veteran under both Federal and State laws if discharged under other than honorable conditions.  He further indicated he understood that he could apply for an upgrade to the Army Discharge Review Board (ADRB) and then to this Board; however, it did not imply his discharge would be upgraded.

7.  The convening authority did not accept the applicant's conditional waiver and on 10 March 1992 the commanding general directed that the applicant appear before an administrative separation board on 30 March 1992 to determine if he should be discharged for a pattern of misconduct.  A copy of the notice to appear before the Board was served on the applicant and his defense counsel on 12 March 1992.

8.  On 13 March 1992, after consulting with defense counsel, the applicant waived his right to appear before an administrative separation board.

9.  The applicant's entire chain of command recommended that he be discharged under other than honorable conditions and a legal review determined the proposed separation proceedings were legally sufficient.

10.  On 17 March 1992, the convening authority (a major general) approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on 25 March 1992 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct).  He had 1 year, 8 months, and 3 days of total active service.

12.  On 16 May 1996, he applied to the ADRB for an upgrade of his discharge.  On 19 May 1997, after reviewing all of the available evidence, the ADRB determined the applicant's discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7b, also 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant's contentions have been noted and found to lack merit.  The applicant received legal counseling by defense counsel on several occasions and he acknowledged he understood the ramifications of a discharge under other than honorable conditions, to include the loss of benefits.  Accordingly, his contentions are not sufficiently mitigating to warrant relief when considering his numerous acts of misconduct and his undistinguished record of service.

3.  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.

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 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)                                         AR20100015662



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ABCMR Record of Proceedings (cont)                                         AR20100016363



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