IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100019337 


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  He states he received a GD; however, he did not dishonor his fellow Soldiers, country, or himself.  Therefore, he should have received an HD.

3.  He contends the GD recently disqualified him from professionally advancing in his career.  He has worked very hard for this advancement opportunity and he does not believe it is fair to lose it due to his GD.

4.  He provides no 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 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.  His military personnel records show he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for a period of 8 years on 19 January 1989.  He was released from the DEP and enlisted in the Regular Army for a period of 4 years on 1 February 1989.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he completed the Basic Airborne Course in item 17 (Civilian Education and Military Schools).

4.  Item 35 (Record of Assignments) of his DA Form 2-1 shows he was assigned to Headquarters and Headquarters Company, 6th Ranger Training Battalion, Fort Benning, GA, on 12 July 1989.

5.  His military personnel record contains a DA Form 2627-1 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 October 1989.  This document shows nonjudicial punishment (NJP) was imposed against him for violation of Article 86 of the UCMJ for being absent without leave (AWOL) from 2 to 9 August 1989.

6.  His record also contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 28 March 1990.  This document shows NJP was imposed against him for:

	a.  violation of Article 123a for writing certain checks in the total amount of $21,170.52 with the intent to defraud, knowing he did not have sufficient funds available; and

	b.  violation of Article 134 for giving Private F____ an unauthorized military identification card.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 18 July 1990, shows he underwent a mental evaluation.  The examining medical officer indicated the applicant had no mental health problems which required treatment or disposition through medical channels.  He was cleared for any administrative or disciplinary action deemed appropriate by the command.

8.  On 14 August 1990, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, for continuous issuance of dishonored checks and continuous refusal to abide by the command's efforts toward rehabilitation.  The commander stated he was recommending the applicant receive a GD.  The applicant was also advised of his rights.

9.  On 14 August 1990, he consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

10.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He indicated he understood he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

11.  He acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant and his legal counsel each signed the document.

12.  On 14 August 1990, the battalion commander reviewed the proposed separation action and recommended approval.

13.  On 14 August 1990, the Commander, Ranger Training Brigade, approved the recommendation for separation and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.  The separation authority directed the applicant be issued a GD and that he not be transferred to the Individual Ready Reserve of the U.S. Army Reserve.

14.  Accordingly, he was discharged on 27 August 1990.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct with the separation code "JKM."  He completed 1 year, 6 months, and 20 days of net active service.

15.  His military personnel records do not show any acts of valor, significant achievement, or service warranting special recognition.

16.  He applied to the ADRB for upgrade of his discharge.  On 2 April 1997, the ADRB determined he was properly and equitably discharged and denied his request for upgrade.

17.  Army Regulation 635-200, in effect at the time of his separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

18.  Army Regulation 635-200 states action will be taken to separate a Soldier 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 an HD or a GD if such is merited by the Soldier's overall record.

19.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.  He contends his discharge should be upgraded because he did nothing to dishonor himself, his country, or his fellow Soldiers; however, his record indicates he wrote checks in an attempt to defraud, knowing he did not have the funds available.

2.  The evidence of record shows he was notified of his company commander's intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200, paragraph 14-12b, for continuous issuance of dishonored checks and continuous refusal to abide by the command's efforts toward rehabilitation.  His commander also recommended he receive a GD.

3.  The evidence shows he consulted with legal counsel who advised him of the basis for the contemplated separation action and that he might expect to encounter substantial prejudice in civilian life if a GD were issued to him.  The applicant and his counsel signed this form, which refutes the applicant's claim that he now believes his GD is unfair because he has been disqualified from advancing in his civilian career.

4.  He was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.  His administrative separation was in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.  He signed his DD Form 214 on the date of his discharge indicating he had reviewed the discharge document, including the type of separation and character of service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for advancement/promotion opportunities in civilian life.

6.  In view of the foregoing, there is no basis to grant the 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 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)                                         AR20100019337



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ABCMR Record of Proceedings (cont)                                         AR20100019337



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