IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100020863


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect, he served a good 3-year enlistment, followed by a good 4-year enlistment without a single problem.  Then after returning home from Operation Desert Storm, he had knee surgery and he went through a divorce.  He sought help from the chaplain, but he was unable to overcome his problems.  Today, he has turned his life around and he would like his 7 good years of service to count for something.

3.  The applicant provides no additional documentation.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years on 31 January 1986.  On 17 February 1986, he was discharged from the USAR DEP and he enlisted in the Regular Army on
18 February 1986 for a period of 3 years.  

3.  The applicant was trained in and served in military occupational specialty (MOS) 11B (Infantryman).  He reenlisted for 4 years on 27 February 1989, and for 3 years on 24 February 1993.

4.  The applicant's record contains one record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for:

* being drunk on duty on or about 17 August 1993
* making a false official statement on 19 August 1993

As punishment, he received a reduction from the rank/grade of sergeant (SGT)/E-5) to specialist (SPC/E-4), forfeiture of $630.00 pay per month for 2 months, and 14 days of restriction and extra duty.

5.  On 20 October 1993 [sic], the applicant's commander notified the applicant of his intent to discharge him under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense.  The applicant acknowledged notification on
16 October 1993.

6.  On an unknown date, the applicant's commander initiated administrative discharge proceedings.  Specific factual reasons for recommending discharge were:

* applicant had a shoplifting conviction
* he was being held in civilian jail on a charge of burglary, driving under the influence, leaving the scene of an accident, evading arrest, and improper registration of a motor vehicle
* he received NJP for being drunk on duty and false swearing

7.  The administrative discharge was submitted through the chain of command to the approving authority.  On 1 September 1993, the approving authority approved the action and directed issuance of an under other than honorable conditions discharge.

8.  The applicant was discharged accordingly on 15 December 1993.  He completed 7 years, 9 months, and 21 days of creditable active service with


7 days of time lost.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Service Ribbon
* National Defense Service Medal
* Air Assault Badge
* Army Good Conduct Medal (2nd Award)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Overseas Service Ribbon
* Southwest Asia Service Medal with 3 bronze service stars
* Kuwait Liberation Medal (Saudi Arabia)
* Combat Infantryman Badge
* Army Commendation Medal
* NCO Professional Development Ribbon
* Army Achievement Medal
* Expert Infantryman Badge

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 6 February 1999, the ADRB, after considering his case, voted to denying his request.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.  Action will be taken to separate a member 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 a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  Paragraph 3-7b states 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 HD.  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 military career was very good for a number of years; however, late in his career, he began committing serious acts of misconduct, both in the military and in the civilian community.

2.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service

3.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100020863



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ABCMR Record of Proceedings (cont)                                         AR20100020863



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