IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100023643 


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, in effect, upgrade of his general discharge.

2.  The applicant states his separation codes and character of service are in conflict with the amount of time he served.

3.  The applicant does not provide any 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 Regular Army on 1 December 1987.  He was awarded military occupational specialty 13B (cannon crewmember) and he was advanced to the rank/grade of specialist (SPC)/E-4.

3.  The applicant was counseled twice in writing for writing bad checks, once for unpaid debts, and once for missing extra duty.

4.  On 31 May 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language towards a senior noncommissioned officer (NCO) by saying to him "If we was one on one you wouldn't talk that s--t to me and no it's no threat but a promise.  I'll kick your a--." or words to that effect.  The punishment imposed was reduction to private (PV2)/E-2, forfeiture of $407.00 for 2 months (suspended), and 45 days of extra duty.

5.  On 1 July 1991, the applicant's commander notified him of his intent to recommend him for a general discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), paragraph 14-12b for misconduct - pattern of misconduct and of his rights in conjunction with that recommendation.  On 3 July 1991, having consulted with counsel, the applicant requested a personal appearance before a board of officers, an election for which he was not entitled to because he had less than 6 years of military service, and an other than honorable conditions discharge was not being recommended.  However, the applicant did submit a letter in his own behalf in which he outlined the financial hardships his reduction and forfeiture of pay was causing him and his family, how he was awarded an Army Achievement Medal and given a Certificate of Achievement, and how he would like to be retained to complete his enlistment.  He then requested that, if discharged, he be given an honorable discharge.

6.  On 9 July 1991, the company commander forwarded his recommendation to discharge the applicant for misconduct through the chain of command to the separation authority.  On 15 July 1991, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - a pattern of misconduct.  He directed the issuance of a General Discharge Certificate.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows in item 24 (Character of Service) the entry "Under Honorable Conditions (General)" and in item 26 (Separation Code) the entry "JKM."  This DD Form 214 also shows the applicant completed 3 years, 8 months, and 1 day of creditable active service.

8.  In 1997, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.


9.  Army Regulation 635-200, Table 3-1 (Types of Discharge Certificates), in effect at the time, provided for the issuance of a General Discharge Certificate (DD Form 257A) for Soldiers whose service was characterized as "Under Honorable Conditions."

10.  Army Regulation 635-5-1 (Personnel Separations - Separation Program Designators), in effect at the time, shows the SPD "JKM" designated Misconduct - pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b.

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.  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.

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 counseling's show the applicant had bad debts, wrote bad checks, and he failed to perform his extra duty.

2.  The applicant's NJP was for disrespectful language towards a senior NCO.  However, the language used by the applicant bordered on a threat.

3.  The applicant's bad debts, writing bad checks, and failing to perform his extra duty was certainly establishing a pattern of misconduct.  However, when he was disrespectful to a senior NCO in a threatening manner, he threatened the good order and discipline of the unit.

4.  The applicant did complete 3 years, 8 months, and 1 day of creditable active service.  It would appear that the applicant's length of service was taken into consideration when he was processed for discharge since an under other than honorable conditions discharge is normally considered appropriate when a Soldier is discharged for misconduct.

5.  A review of historical regulations confirm that the applicant's character of service and separation code were in compliance with regulations in effect at the time.

6.  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 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)                                         AR20100023643



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ABCMR Record of Proceedings (cont)                                         AR20100023643



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