IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100019200 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he did not commit any major offense against the Army and that he was discharged because he was late coming back from leave, despite the fact that he called his unit. 

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 26 December 1955 and enlisted in the Regular Army on 12 July 1988 with a moral waiver for a period of 4 years, training as an infantryman, and a cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Benning, Georgia and remained assigned there for his first and only duty assignment.

3.  On 16 February 1989, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 3 January to 18 January 1989.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty.

4.  On 20 March 1989, nonjudicial punishment was imposed against him for larceny of property.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty.

5.  On 22 June 1989, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct due to commission of a serious offense.  He advised the applicant that he was recommending that he receive a general discharge and cited as the basis for his recommendation:

* The applicant’s AWOL and disciplinary record
* His failure to pay just debts, repeated indebtedness, and garnishment of his wages for child support
* His repeated writing of bad checks
* His arrest by civil authorities (twice) for beating his wife
* Apathy
* Failure to respond to numerous counseling sessions

6.  After consulting with counsel the applicant waived his rights and elected to submit a statement in his own behalf whereas he stated that he believed that the chapter 14 discharge was best for all concerned and that he had requested it.  He also stated that had not his personal problems arisen he could have been a top Soldier.

7.  The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate. 

8.  Accordingly, he was discharged under honorable conditions on 17 August 1989 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct- commission of a serious offense.  He had served 1 year and 21 days of total active service and had 14 days of lost time due to AWOL.

9.  There is no evidence to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s     15-year statute of limitations.

10.  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, and commission of a serious offense.  A discharge under other than honorable conditions is normally considered appropriate.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted and found to lack merit.  The applicant was involved in repeated acts of misconduct during his brief period of service.  Accordingly, there is insufficient evidence to warrant relief when compared to his overall record of undistinguished service and his repeated acts of misconduct.  His service simply does not rise to the level of an honorable  discharge.

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 has 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 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)                                         AR20100019200





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ABCMR Record of Proceedings (cont)                                         AR20100019200



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