IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100027137 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that his discharge should be upgraded because he served honorably up until the end of his service.  He goes on to state that he needs his medical benefits to help with his medical care and prescriptions.

3.  The applicant provides copies of medical documents and prescriptions.

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 in Miami, Florida on 3 September 1982 for a period of 4 years.  He completed his one-station unit training at Fort Benning, Georgia and he continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 7 July 1986.

3.  He was transferred to Anchorage, Alaska on 16 July 1992 for assignment to an infantry company at Fort Richardson.

4.  On 5 March 1993, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to his conviction by civil authorities.  He cites as the basis for his recommendation that the applicant was convicted of two counts of 4th degree assault upon his wife and was sentenced to 180 days in jail of which 165 days were suspended.

5.  On 18 July 1993, the applicant was arrested for driving while under the influence (DWI) of alcohol.  Although the instrument of reduction is not present in the available records, it appears that he was reduced to the pay grade of E-4 for that offense.

6.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

7.  On 17 August 1993, the applicant received a general officer memorandum of reprimand (GOMOR) for his DWI offense.

8.  On 27 September 1993, the appropriate authority ( a major general) approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct.  He had served 11 years, 1 month, and 2 days of total active service.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

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 commission of a serious offense, which 


includes drug offenses.  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 compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.
 
3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offense.  Additionally, discharges are not upgraded simply for the purpose of qualifying for benefits and the applicant’s overall service simply does not rise to the level of a fully 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)                                         AR20100027137





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ABCMR Record of Proceedings (cont)                                         AR20100027137



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