IN THE CASE OF:
BOARD DATE: 10 February 2011
DOCKET NUMBER: AR20100019070
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, in effect, that his under other than honorable conditions discharge be upgraded to a general discharge.
2. He states:
* He was experiencing emotional and physiological problems
* He was discharged as a result of these problems
* He is currently undergoing treatment to better his quality of life
* He has the support of people in his community
* He has joint custody of his 10 year old son
* His life has been very hectic and a general discharge would make life much easier for him
3. He did not provide any additional 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His military service records show he enlisted in the U.S. Army Reserve on 25 July 1990.
3. His DA Form 2-1 (Personnel Qualification Record Part II) shows the following:
* Item 35 (Record of Assignments):
* He completed basic combat training
* Attended advanced individual training (AIT) for military occupational specialty (MOS) 75E (Personnel Records Specialist) on 2 November 1990
* Attended AIT for MOS 31K (Combat Signaler) on 21 December 1990
* He was absent without leave (AWOL) from 8 February 1991 through
7 March 1991
4. His record shows no acts of valor or service warranting special recognition. It does show that between 28 January and 26 March 1991, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions: The charges were for:
* Failing to go to his prescribed place of duty
* Disobeying a lawful order from a superior noncommissioned officer
* Going AWOL
* Breaking restriction
* Possession of food in his wall locker
* Security violation of private property
* Storing valuable equipment in his wall locker
* Violation of a general order by having a female Soldier in his bed
5. His record contains a DA Form 3822-R (Report of Mental Status), dated
20 March 1991. This evaluation took place at the request of his commander for a pending action to discharge the applicant because of misconduct. The medical officer concluded that he (applicant) had the mental capacity to understand and participate in separation board proceedings.
6. On 25 March 1991, the unit commander notified the applicant he was initiating action to separate him under the provisions of Paragraph 14-12c, Army Regulation 635-200 (Enlisted Personnel), for pattern of misconduct and commission of a serious offense. He recommended the applicant receive an under other than honorable conditions discharge. The battalion and the brigade commanders concurred with the company commanders recommendations.
7. He was advised of the effect that an under other than honorable conditions discharge could have; he was advised of the rights available to him; the effect of any action taken by him in waiving his rights, and acknowledged he understood he was entitled to have his case considered by an administrative separation board. He voluntarily waived consideration of his case by an administrative separation board; waived his right to a personal appearance; did not submit statements on his own behalf, and requested to consult with counsel. He admitted he further understood that he may encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued.
8. The Staff Judge Advocate found the applicant's separation packet legally sufficient. On 24 April 1991, the separation authority approved the discharge action under the provisions of chapter 14 of Army Regulation 635-200 and directed that the applicant be separated with an under other than honorable conditions discharge.
9. His DD Form 214 shows he was discharged under other than honorable conditions on 29 April 1991, under the provisions of paragraph 14-12c of Army Regulation 635-200, by reason of misconduct (commission of a serious offense). He served 7 months and 3 days of net active Federal service with 28 days of lost time due to being AWOL.
10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
11. 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.
12. Paragraph 14-12c of the same regulation states, in pertinent part, that all Soldiers against whom charges will not be referred to a court-martial will be processed for separation under this provision of the regulation. 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. A characterization of service of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.
13. Army Regulation 635-200, paragraph 3-7b, states 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.
DISCUSSION AND CONCLUSIONS:
1. His request to upgrade his discharge was carefully considered. However, there is insufficient evidence to support granting the requested relief.
2. The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his receipt of NJP under the UCMJ and repeated offenses clearly diminished the overall quality of his service.
3. Therefore, he is not entitled to an upgrade of his discharge.
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) AR20100019070
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ABCMR Record of Proceedings (cont) AR20100019070
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