IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021605 


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 general discharge to an honorable discharge.

2.  The applicant states he is disabled and unable to work, and he is trying to go back to school.  An honorable discharge would help him.

3.  The applicant did not provide any 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.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 2 years on 20 February 1990 and held military occupational specialty 11B (Infantryman).  
3.  On 7 December 1990, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully consuming alcohol while under the age of 21.  His punishment consisted of a reduction to private (PV1)/E-1, a forfeiture of $168.00 pay (suspended), extra duty for 14 days, and a verbal admonition.

4.  His record contains several DA Forms 4856 (General Counseling Form) on the following dates:

* 19 November 1991 for an altercation with his wife
* 4 December 1991 for an assault consummated battery
* 12 December 1991 for driving under the influence (DUI)
* 18 December 1991 for being apprehended for DUI and referral of Article 15 action for consuming alcohol under the age of 21

5.  On 24 January 1992, the applicant received a General Officer Letter of Reprimand for operating a motor vehicle when his blood alcohol content was .15/.13 percent when .10 percent violates Department of the Army policy.

6.  On 26 January 1992, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b for misconduct - pattern of misconduct.  The specific reasons were he:

* received two Article 15's for drinking under the legal age of 21
* was arrested for DUI
* was charged with assault consummated by a battery
* was enrolled in the Alcohol and Drug Abuse Prevention and Control Program

7.  On 27 January 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for pattern of misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

8.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 30 January 1992, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12b for a misconduct - pattern of misconduct, with the issuance of a general discharge.  He further requested a waiver of the requirements for rehabilitation and indicated that further rehabilitation would not have been feasible and would have created serious disciplinary problems or a hazard to the mission and the member.

10.  On 31 January 1992, the applicant’s intermediate commander recommended the applicant be separated from the Army for misconduct with the issuance of a general discharge.

11.  On 3 February 1992, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 21 February 1992.

12.  The DD Form 214 he was issued confirms he was discharged on 21 February 1992 with a general discharge.  However, this form erroneously listed the authority for separation as paragraph 14-12c by reason of misconduct - commission of a serious offense instead of 14-12b by reason of misconduct - pattern of misconduct.  This form further confirms he completed 2 years and
2 days of creditable active service.

13.  On 23 July 1999, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

15.  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 evidence of records shows that the applicant had a history of disciplinary problems including two Article 15's for consuming alcohol while under the age of 21, a DUI and assault and battery charge, and an altercation with his wife.  As a result, his chain of command initiated separation action against him based on his misconduct.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for veterans or other programs or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  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)                                         AR20100021605



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ABCMR Record of Proceedings (cont)                                         AR20100021605



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