IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100022157 


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 general discharge be upgraded to an honorable discharge.

2.  He states that he was accused of driving under the influence (DUI).  He went to court, he was found not guilty, and he was subsequently discharged for misconduct.

3.  The applicant provides no additional documentation in support of this case.

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 Regular Army on 16 October 1986 and successfully completed basic and advanced individual training.  He was awarded military occupational specialty 13B (Cannon Crewman).

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 February 1990, indicates that on 12 January 1990, he was a passenger in a vehicle that was involved in a motor vehicle accident.  He received minor injuries from the accident.  The driver of the motor vehicle was arrested and charged with DUI.

4.  On 24 February 1990, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to be at his appointed place of duty.

5.  On 24 April 1990, the applicant accepted NJP under Article 15, UCMJ, for breaking restriction.

6.  On 5 June 1990, the applicant accepted NJP under Article 15, UCMJ, for missing the battalion movement.

7.  On 16 July 1990, his commander initiated elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for pattern of misconduct.  The commander cited the reasons for this action were his DUI [he was not charged with the offense], failing to be at his appointed place of duty, and breaking restriction.

8.  On 18 July 1990, he was advised by consulting counsel of the basis for the contemplated separation action and of the impact of the discharge action.  He signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  He requested counsel, waived his right to an administrative board, and elected not to submit a statement on his own behalf.

9.  On 25 July 1990, the discharge authority approved the elimination packet and directed that the applicant be issued a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  On 31 July 1990, he was discharged from the service in pay grade E-2 after completing 3 years, 
9 months, and 15 days of creditable active service.

10.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 3 October 1997, the ADRB denied his request.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as general, under honorable conditions.
11.  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, and conviction by civil authorities.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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 applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows he received three Article 15's, he failed to be at his appointed place of duty, he broke restriction, and he missed a battalion movement.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a honorable discharge.

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)                                         AR20100022157



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ABCMR Record of Proceedings (cont)                                         AR20100022157



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