BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100017352 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

* His discharge is unjust due to extreme prejudice and entrapment
* During his proceedings his defense lawyer discovered false evidence was presented
* Passing rumors around the facility (that he engaged in unnatural sexual behavior) were started to ward off any witnesses who would testify on his behalf 
* His lawyer asked him if he wanted her to bring these allegations forward in his case but he did not want such things brought out
* If he had known that such tactics were being implemented he would have addressed it
* He was devastated and did not realize he could request reassignment
* Because of his mental state, he went along with his lawyer's recommendation to accept his discharge
* After his discharge he sought help and the Department of Veterans Affairs informed him of the various programs available to assist him in rebuilding and transitioning back into society   

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


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 20 January 1981.  He trained as an aviation operations specialist, communications systems operator, and operations intelligence assistant.  He remained on active duty through continuous reenlistments.  He attained the rank of sergeant first class on 1 July 1991. 

3.  On 27 October 1994, nonjudicial punishment (NJP) was imposed against the applicant for signing a false official document (two specifications), making a false official statement, wrongfully obtaining telephone services, and larceny. 

4.  On 3 January 1995, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph14-12c, for misconduct (commission of a serious offense).  The unit commander cited the incidents of misconduct in the applicant's NJP, unauthorized use of a government vehicle, other acts of misconduct, and that the applicant demonstrated conduct prejudicial to good order and discipline.  He recommended the applicant receive a discharge under other than honorable conditions.

5.  On 3 January 1995, the applicant consulted with counsel, he was advised of his rights, and he requested consideration of his case by an administrative separation board.

6.  A board of officers convened on 16 February 1995 and found that the applicant did commit misconduct (commission of a serious offense) and recommended that he be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a general discharge.  On 24 March 1995, the separation authority approved the findings and directed that the applicant be discharged with a general discharge.

7.  Accordingly, the applicant was separated with a general discharge on 5 April 1995 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had a total of 14 years, 2 months, and 16 days of creditable active service.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

10.  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 has provided no evidence to support his contention that "entrapment" was utilized in his case.  This issue could have been addressed at his administrative separation board or in a statement with his discharge packet. 

2.  There is no evidence of record which shows the applicant was a victim of discrimination/prejudice.

3.  The applicant’s record of service during his last enlistment included one NJP for serious offenses.  He was a sergeant first class discharged for misconduct.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  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.   
5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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)                                         AR20100017352





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ABCMR Record of Proceedings (cont)                                         AR20100017352



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