IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100024007 


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 an upgrade of his under honorable conditions (general) discharge to fully honorable.

2.  The applicant states he has been out of the military for 15 years.  He has stayed out of trouble with no involvement in alcohol or drugs and he now stays with the church.  He is now an honest, reliable, and helpful person.  He is involved in the community and the church and would like his discharge upgraded. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support.

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 on 24 July 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty 82C (Field Artillery Surveyor).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's records show he served in Germany from 9 January to 13 October 1993 and in Haiti from 23 September to 20 October 1994.  He was awarded the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 16 June 1994, he was reprimanded by his immediate commander for falsely pretending to be a telephone operator who was authorized to accept collect calls, numbering 156 calls, on official military telephones, costing the Army about $11,170.23. 

5.  On 27 July 1994, he was counseled by his platoon sergeant for missing formation.

6.  On 30 November 1994, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for making a false official statement in that he claimed his wife had a stillborn birth and he needed to go on emergency leave to bury the child.  His punishment consisted of a reduction to E-2, forfeiture of pay, and 45 days of extra duty.

7.  On 13 December 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant making a false statement while being administered an Article 15 for making a false statement.  He recommended a general discharge.

8.  On 13 December 1994, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for 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 elected not to submit a statement on his own behalf.

9.  The applicant further acknowledged 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.

10.  On 14 December 1994, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense.  The immediate commander recommended he receive an under honorable conditions (general) characterization of service.

11.  On 15 December 1992, applicant's intermediate commander recommended approval of the applicant's discharge and further recommended he receive an under honorable conditions (general) characterization of service.

12.  On 19 December 1994, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished an under honorable conditions (general) discharge.  Accordingly, the applicant was discharged on 4 January 1995.  

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with an under honorable conditions (general).  This form further confirms he completed a total of 2 years, 5 months, and 11 days of creditable military service.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  He submitted a statement, dated 24 June 2010 from a high school colleague who describes the applicant as a God-fearing man and wonderful father.  He is involved in his community and church.

16.  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 included 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 the regulation.

17.  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 contends that his general discharged should be upgraded.

2.  The applicant's awards and decorations, conduct after discharge, and his post-service citizenship are commendable; however, they are not sufficiently mitigating for granting the relief requested.

3.  The evidence of record shows the applicant committed a serious offense in that he made a false statement while being administered an Article 15 for making a false statement.  Accordingly, his chain of command initiated separation action against him.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  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, he is not entitled to an 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)                                         AR20100024007



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ABCMR Record of Proceedings (cont)                                         AR20100024007



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