IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029330 


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 his general discharge be upgraded to honorable. 

2.  The applicant states:

* He served for a term of 2 years, 6 months, and 15 days
* His military record should show his professional/ethical behavior while in the service was good for the exception of one incident (Article 15)
* He is not only attending school but would also love the opportunity to take advantage of the GI Bill which he worked hard for while in the service
* He got into an altercation during off duty hours and this was the reason for his separation since President Clinton at the time was trying to reduce the military forces 

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.  He enlisted in the Regular Army on 1 November 1988 for a period of 4 years.  He completed his training and was awarded military occupational specialty (MOS) 19E (M48-M60 Armor Crewman) and later MOS 19K (M1 Armor Crewman).  

3.  On 31 January 1990, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order.  

4.  On 6 April 1990, NJP was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  

5.  The applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  He cited the applicant had committed second degree assault, disobeyed a lawful order, and failed to show proof of insurance at the site of an accident.  He recommended the applicant receive a discharge under other than honorable conditions.

6.  On 11 January 1991, the applicant consulted with counsel and requested consideration of his case by an administrative separation board.  He acknowledged he understood he might encounter substantial prejudice in civilian life if a general discharge was issued, and he elected not to submit a statement on his own behalf.  

7.  On 6 March 1991, a board of officers was appointed.

8.  On 24 April 1991, the applicant's chain of command recommended he receive a general discharge.

9.  On 2 May 1991, the separation authority withdrew the board of officers appointed on 6 March 1991 and approved the recommendation for separation and directed the issuance of a general discharge.  

10.  He was discharged on 15 May 1991 with an under honorable conditions discharge (a general discharge) under the provisions of Army Regulation 
635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 2 years, 6 months, and 15 days of creditable active service.

11.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 

12.  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 prescribes 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.

13.  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.  He contends he had one Article 15.  However, records show he had two NJPs. 

2.  The ABCMR does not correct records solely for the purpose of making an applicant eligible for veterans' benefits (i.e., the Montgomery GI Bill).  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  His record of service included two nonjudicial punishments.  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.

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

5.  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)                                         AR20100029330



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ABCMR Record of Proceedings (cont)                                         AR20100029330



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