IN THE CASE OF:	 

		BOARD DATE:	   5 May 2011

		DOCKET NUMBER:  AR20100026222


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 general, under honorable conditions discharge to an honorable discharge.  In addition, he requests restoration of his rank/pay grade back to sergeant (SGT)/E-5.

2.  The applicant states, in effect, his discharge should be upgraded due to the passage of time.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) on 9 October 1974.  He completed training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  On 17 November 1977, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group for the remainder of his service obligation. 

3.  On 21 August 1979, he again enlisted in the RA, for a 4-year term.  

4.  On 28 January 1985, he was barred from reenlistment, for:

* a ration control violation, for which he was pending receipt of a company-grade Article 15 [nonjudicial punishment]
* having received a Summarized Article 15, on 16 November 1984, for violating the unit pass policy
* showing only marginal success while enrolled in the Alcohol and Drug Abuse Prevention and Control Program
* missing a battalion-wide training event on 8 September 1984 

5.  On 1 June 1985, he was incarcerated at the Arapahoe County Jail.  He was released from civilian confinement on 18 July 1985, but failed to return to his unit and was reported as absent without leave (AWOL), effective 18 July 1985.  He returned to his unit on 24 July 1985.

6.  On 26 July 1985, he was again reported by his unit as AWOL.

7.  On 26 August 1985, his commander preferred court-martial charges against him, for being AWOL from his unit from 26 July 1985 to a future, undetermined date, with the intent to remain AWOL permanently.

8.  On 24 October 1985, he was apprehended by civilian authorities and returned to military control at Fort Carson, CO.

9.  On 30 December 1985, at a special court-martial convened at Fort Carson, CO.  He pled guilty to 2 specifications of a single charge of AWOL, from 18 July 1985 to 24 July 1985 and from 26 July 1985 to 24 October 1985.

10.  On 30 December 1985, the court-martial found him guilty of both specifications of the charge, and sentenced him to confinement for 3 months, forfeiture of $200.00 per month for 3 months, and reduction in rank to private/E-1. 




11.  On 10 February 1986, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – commission of a serious military offense which is prejudicial to good order and discipline, as evidenced by his lengthy period of AWOL.  On 10 February 1986, he acknowledged receipt of this notification.

12.  On 12 February 1986, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He elected to be represented by counsel, but waived his right to have his case considered by a board of officers if separation was to be accomplished by the Special Court-Martial Convening Authority.  He did, however, elect to have his case heard by a board of officers if his separation was to be accomplished by the General Court-Martial Convening Authority.  In either case, he waived personal appearance before a board of officers.  He elected to make or submit statement(s) in his own behalf; however, no submitted statement(s) were contained within his available separation packet.

13.  On an unknown date in March 1986, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed he receive a general under honorable conditions discharge.  On 1 April 1986, he was discharged accordingly.  His DD Form 214 confirms he was discharged by reason of misconduct – commission of a serious offense.  This form also shows he completed a total of 9 years and 4 days of total active service.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

14.  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.

15.  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.
16.  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 request for an upgrade of his general under honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and was advised of the basis for the separation action.

3.  Based on his record of indiscipline including nonjudicial punishment, a bar to reenlistment, and a court-martial conviction for an extended period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100026222



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