IN THE CASE OF:	  

		BOARD DATE:	    10 February 2011

		DOCKET NUMBER:  AR20100020846 


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 general under honorable conditions or honorable.

2.  The applicant states he was a great Soldier and still is.  He further states he fought for his country and suffers from the side effects of the Gulf War, but he cannot go to any Department of Veterans Affairs medical treatment facility because of his discharge.

3.  The applicant provides no additional documents with 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.  He enlisted in the Regular Army in Oklahoma City, Oklahoma, on 13 September 1988 for a period of 4 years and training as a cannon crewman.  He underwent one-station unit training at Fort Sill, Oklahoma, and was transferred to Germany on 7 January 1989 for assignment to a field artillery battery.  He was advanced to pay grade E-4 on 1 January 1990.

3.  He deployed to Southwest Asia in support of Operation Desert Shield on 3 December 1990 and remained there until 23 January 1991 when he returned with his unit to Germany.

4.  He departed Germany on 18 February 1991 for assignment to Fort Carson, Colorado.

5.  On 2 May 1991, the applicant received a letter of reprimand for driving under the influence (DUI).

6.  Although the record of punishment is not present in the available records, his records do show he was reduced to pay grade E-3 on 29 August 1991 as a result of nonjudicial punishment (NJP).

7.  The applicant's records show he was absent without leave (AWOL) from 7 to 21 November 1991; however, the record is silent as to any punishment imposed for that offense.

8.  On 22 November 1991, NJP was imposed against him for being AWOL from 15 to 21 August 1991.

9.  On 22 November 1991, the commander notified him he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He cited that the applicant had been AWOL twice, had failed to repair twice, had one DUI, and had uttered numerous bad checks as the basis for his recommendation.

10.  On 23 December 1991, NJP was imposed against him for failure to go to his place of duty and for being AWOL from 18 to 21 October 1991.

11.  After consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

12.  On 14 January 1992, the appropriate authority approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

13.  Accordingly, he was discharged under other than honorable conditions on 23 January 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 3 years, 3 months, and 16 days of total active service.

14.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge and requested that the reason be changed to reflect that he was discharged with an "early out."  The ADRB determined the applicant's discharge was both proper and equitable under the circumstances and voted to deny his request.

15.  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.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7b, 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 have jeopardized his rights.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

2.  The applicant's record of service simply did not rise to the level of a discharge under honorable conditions.

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)                                         AR20100020846



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ABCMR Record of Proceedings (cont)                                         AR20100020846



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