IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100021591 


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 a general discharge.

2.  The applicant states he was lead to believe his discharge was caused by his driving under the influence incidents.  He states he was an excellent gunner and he would like to have his discharge upgraded for medical, employment, and personal reasons.

3.  The applicant provides a SF-180 (Request Pertaining to Military Records).

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 Army on 12 May 1987.  He completed training as an indirect fire infantryman.

3.  The applicant was counseled on at least 15 separate occasions between 1 April 1988 and 8 December 1989 for the following:

* Driving under the influence of alcohol (two incidents)
* Unsatisfactory performance
* Conviction by civil authorities of theft
* Attempting to secure money from a ATM using a card belonging to someone else
* Lack of motivation
* Speeding and getting a ticket
* Missing formations
* Uttering a dishonored check
* Disobeying a lawful order
* Disrespect to a noncommissioned officer
* Falling asleep on duty
* Initiation of discharge action

4.  Nonjudicial punishment (NJP) was imposed against him on 21 November 1989 for resisting arrest and failure to obey a lawful order.

5.  On 20 December 1989, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12c for misconduct – commission of a serious offense.  He acknowledged receipt of the notification and he elected to appear before an administrative separation board.

6.  On 8 March 1990, the applicant received a notification to appear before an administration separation board.  He acknowledged receipt of the notification and he made an election for witnesses to be called in his behalf.

7.  The administrative separation board convened on 13 April 1990.  The board found:

* he wrote checks for insufficient funds on 30 June
* he committed a serious offense by driving under the influence on 9 June 1989
* he committed a serious offense by driving under the influence, resisting arrest, and driving with a suspended license

8.  The administrative separation board found the applicant to be undesirable for retention in the military service due to his misconduct.  The board recommended the he be discharged under other than honorable conditions.

9.  The recommendation for discharge was approved on 25 April 1990.  On 7 May 1990, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.

10.  There is no evidence that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

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 – commission of a serious.  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.  

12.  Army Regulation 635-200 provides at:

	a.  paragraph 3-7a 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; and

	b.  paragraph 3-7b 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  His records show that he was counseled on at least 15 separate occasions as a result of his acts of misconduct.  He had NJP imposed against him and an administrative separation board determined that he was undesirable for retention in the Army.  

3.  The type of discharge the applicant received appropriately reflects his overall record of service.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20100021591



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021591



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1