IN THE CASE OF:	  

		BOARD DATE:	 17 May 2011

		DOCKET NUMBER:  AR20100028368


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 discharge to an honorable discharge.

2.  The applicant states he received a general discharge after being convicted of driving under the influence at a time in his life when he was having tremendous issues with drinking and the military was downsizing.  He states that accepting the discharge seemed like the easiest solution at that time in his life, but he regrets not fighting the discharge he received.  He further states he is currently working as a registered nurse and is enjoying a life of recovery from alcohol.  He concludes by stating a discharge upgrade would reinforce the pride he feels for his service to his country.

3.  The applicant provides no additional 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's record shows he enlisted in the Regular Army on 30 June 1989.  He completed training and was awarded military occupational specialty 67T (Tactical Transport Helicopter Repairer).

3.  He was notified by his immediate commander of his intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for the commission of a serious offense (driving under the influence).

4.  On 29 September 1993, he acknowledged he had been advised by his counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effects; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to not submit a statement in his own behalf.

5.  On 30 September 1993, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14 and directed that he be given a general discharge under honorable conditions.  On 1 October 1993, he was discharged accordingly.  His DD Form 214 confirms he was discharged by reason of misconduct – commission of a serious offense.  He completed a total of 4 years, 3 months, and 2 days of net active service during this period.  The highest rank/grade he attained while serving on active duty was specialist/E-4.

6.  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.

7.  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 the regulation.

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

2.  His 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 misconduct – including the commission of a serious offense – 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.

4.  In view of the foregoing, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20100028368



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