IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100027580 


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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he was having a hard time coping with the death of his father, resulting in his making irrational decisions.

3.  The applicant provides no 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.  On 7 August 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 19D (Cavalry Scout).  He reenlisted in 1984 and was promoted to staff sergeant, pay grade 
E-6, on 18 October 1985.

3.  The evidence of record shows the applicant was counseled as follows:

* 18 June 1993:  Missed accountability formation
* 2 July 1993:  Failed to provide telephonic communications
* 8 July 1993:  Compromised professional integrity
* 13 July 1993:  Failed to follow instructions
* 20 July 1993:  Counseled by unit first Sergeant  for being untruthful, absent from duty, and uncommunicative
* 20 July 1993:  Counseled about attachment to Troop A (rehabilitative duty) effective 23 July 1993
* 6 August 1993:  Theft by deception (worthless checks)
* 13 August 1993:  Theft by deception (worthless checks)
* 30 August 1993:  Failed Army Physical Fitness Test (APFT)
* 8 September 1993:  Theft by deception (worthless checks)
* 8 September 1993:  Failed run portion of APFT retest
* 23 September 1993:  Domestic violence (spouse/child abuse)
* 24 September 1993:  Enrolled in the financial assistance program
* 1 October 1993:  Theft by deception (worthless checks)
* 18 October 1993:  Theft of private property; selling of stolen property
* 18 October 1993:  Civil court order - 60-day confinement probated for period of 2 years
* 20 October 1993:  Security clearance suspended

4.  On 10 November 1993, the telephone company wrote a letter to the applicant's commander requesting assistance with obtaining past due payment for his account which had been disconnected in March 1993.

5.  On 18 November 1993, the applicant underwent a mental status evaluation. The applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible and had the mental capacity to understand and participate in the proceedings. 

6.  On 28 December 1993, the Army and Air Force Exchange Service (AAFES) suspended the applicant's charge card privileges because his account was overdue.   

7.  On 7 January 1994, the applicant was notified by his commander of his intention to initiate separation action based on the applicant's pattern of misconduct.  The applicant acknowledged receipt of this action.

8.  On 7 January 1994, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct.  The commander stated that the applicant had displayed a pattern of misconduct by uttering worthless checks, theft by unlawful taking, domestic violence, selling stolen property, failing to follow instructions, and lying to a senior noncommissioned officer.  The applicant had been offered every opportunity and program to assist and help him, all to no avail.

9.  On 11 January 1994, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than under honorable conditions.  He elected not to make a statement in his own behalf.

10.  On 14 January 1994, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general, under honorable conditions discharge.

11.  Accordingly, on 2 February 1994, the applicant was discharged under honorable conditions.  He had completed 13 years, 5 months, and 26 days of creditable active duty service.

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

13.  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 a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

14.  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, under honorable conditions discharge should be upgraded to honorable because the death of his father caused him to make irrational decisions.

2.  The record shows the applicant was counseled for more than a dozen offenses between June and October 1993.  This clearly shows a pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  There is no available evidence and the applicant has not provided a convincing argument showing that the death of his father had a direct result in his making irrational decisions to perform criminal acts.

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20100027580





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ABCMR Record of Proceedings (cont)                                         AR20100027580



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