IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100024508 


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, an upgrade of his discharge under honorable conditions.

2.  The applicant states he was a young man who made very bad decisions; now that he is older he makes very good decisions.  He completed his schooling and now is working on his bachelor degree in electrical engineering.  He has also worked at a very profitable company as an electrician for the last 11 years and would love to come back to the Department of Veterans Affairs.  He adds that his work history and family life have been of the utmost honor.  He would greatly appreciate it if his service record could change from a general under honorable conditions discharge to just an honorable discharge.

3.  The applicant provided his civilian résumé in support of his request.

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 was born on 21 August 1969 and enlisted in the Regular Army on 21 January 1988 at 18 years and 5 months of age.  He was trained in and awarded military occupational specialty 72E (Tactical Telecommunications Center Operator-3).  The highest rank/grade he attained while serving on active duty was private first class/pay grade E-3.

3.  On 7 January 1991, the applicant’s installation driving privileges were suspended for driving on a military installation while his license was suspended.

4.  On 1 February 1991, the applicant was convicted by civilian court for driving while his license was suspended.  He was sentenced to a fine of $350.00, $129.50 for cost of court and confinement for 3 days.  He was given credit for 3 days towards the completion of his sentence which was the time he served in jail awaiting trial.     

5.  Between February and July 1991, the applicant was counseled six times for two incidents of indebtedness, failure to comply with company standards, disobeying an order, and for missing formation.

6.  On 24 July 1991, the applicant received nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was 14 days restriction, and 14 days of extra duty.

7.  On 31 May 1991, the applicant was arrested and released from civilian confinement on a personal bond for assault with bodily injury.  The applicant’s record indicates that he was convicted by civil court for the assault; however, the paperwork is missing from his record.

8.  On 3 September 1991, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty. His imposed punishment was a reduction to pay grade E-2, 14 days restriction and 14 days of extra duty.

9.  On 17 September 1991, a Report of Mental Status Evaluation found the applicant mentally responsible and that he had the capacity to understand and participate in board proceedings. 

10.  On 19 September 1991, the unit commander notified the applicant he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  The unit commander's recommendation was based on the applicant’s two Article 15s, several counseling statements, letters of indebtedness, two civil convictions, and driving with a suspended license.  

11.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that an under other than honorable conditions discharge were recommended.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a less than an honorable discharge were issued to him.  He further understood that as the result of the issuance of a less than fully honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant elected not to submit a statement in his own behalf.

12.  On 23 September 1991, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct and directed the issuance of a General Discharge Certificate.  On 4 October 1991, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct –Pattern of Misconduct.  He completed a total of 3 years, 8 months, and 14 days of active duty service.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

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 applicant's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows the discharge he received in 1991 was unjust or unfair.

2.  The evidence of record, however, does show the applicant was tried and twice convicted by a civil court, received NJP, and was formally counseled on six different occasions for a numerous disciplinary actions.  These offenses were serious acts of misconduct which warranted his discharge.

3.  The applicant's entire record of service and his post-service conduct was carefully considered; however, given the seriousness of the offenses for which he was convicted, these factors are not sufficiently meritorious or mitigating to warrant clemency in this case.

4.  As a result, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

5.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable discharge.

6.  The applicant enlisted at 18 years and 5 months of age and he was over 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

7.  In view of the above, there is no basis for granting his 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)                                         AR20100024508



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ABCMR Record of Proceedings (cont)                                         AR20100024508



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