IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027660 


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 upgrade of his general discharge to an honorable discharge and change of his pay grade from E-3 to E-4.

2.  The applicant states:

* He served in the Army from March 1985 to March 1988 and he received an honorable discharge
* He reentered the Army in March 1989 and he received a general discharge in August 1991 due to family and financial problems
* At the time his superiors were aware of his hardship and tried to help him to the best of their ability to prevent him from experiencing a family crisis
* He accepted responsibility for misconduct that never occurred
* He was a model Soldier and he earned many commendations and awards
* He feels he truly earned the respect of his fellow Soldiers and superiors
* His only regrets were he followed through with the accusations of not being at his appointed place of duty even though he had the documentation that would have cleared him of any misappropriate behavior

3.  The applicant provides no documentary evidence.


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 13 March 1985.  He completed his training and he was awarded military occupational specialty 63N (tank system mechanic).  On 1 March 1988, he was honorably released from active duty.

3.  On 28 March 1989, he enlisted in the RA for a period of 4 years.

4.  On 11 April 1991, a bar to reenlistment was imposed against the applicant.

5.  A DA Form 4856 (General Counseling Form), dated 8 May 1991, shows he was counseled for substandard performance and financial problems (numerous bad checks and debt).  This form indicates he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, in April 1986 for possessing marijuana; in February 1989 for missing movement; and in September 1990 for missing formation.

6.  On 14 May 1991, NJP was imposed against him for being absent without leave (AWOL) with the intent to avoid a field exercise from 26 April 1991 to 
29 April 1991 and making a false official statement.  His punishment included a reduction to E-3.

7.  A DA Form 4187 (Personnel Action), dated 1 July 1991, shows the applicant was reduced to E-3 effective 21 May 1991.

8.  On 11 July 1991, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for misconduct - pattern of misconduct.  The unit 


commander cited his reasons as the applicant had written several dishonored checks, he had received NJP, and he had been barred to reenlist.

9.  On 12 July 1991, he submitted a request for a conditional waiver.  He consulted with counsel, he waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than under honorable conditions (a general discharge), and he elected not to submit a statement in his own behalf.

10.  On 31 July 1991, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

11.  He was separated with a general discharge on 16 August 1991 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct.  He had served 5 years, 4 months, and 5 days of total creditable active service with 3 days of time lost.

12.  Item 4a (Grade, Rate or Rank) of his DD Form 214 shows the entry "PFC" [private first class].  Item 4b (Pay Grade) shows the entry "E-3."  Item 12h (Effective Date of Pay Grade) shows the entry "91 05 21" [21 May 1991].

13.  There is no evidence of record which shows he was advanced back to E-4 subsequent to his discharge on 16 August 1991.

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

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, 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, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

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 contends he accepted responsibility for misconduct (not being at his appointed place of duty) that never happened.  However, evidence shows he accepted NJP on 14 May 1991 for being AWOL for 3 days and making a false official statement.  As a result he was reduced to E-3 effective 21 May 1991, which is properly reflected in items 4a, 4b, and 12h of his DD Form 214.  Therefore, there is no basis for granting this portion of his request.

2.  He contends he was a model Soldier; however, his record of service during his last enlistment included a bar to reenlistment, three NJPs, and 3 days of time lost.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

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

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)                                         AR20100027660



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100027660



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1