IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100030530 


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 discharge under honorable conditions be upgraded to an honorable discharge.

2.  He states he made an error in judgment during his service in Iraq.  He attributes this error in judgment to the extremely stressful conditions in wartime Iraq, claiming it would not have occurred otherwise.  He states he is now homeless with no income and he cannot better himself due to the character of discharge.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 September 1995.

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 on 5 November 1991 and successfully completed basic and advanced individual training.  He was awarded military occupational specialty 19K (M-1 Armor Crewman).

3.  He completed several military courses to include the Primary Leadership Development Course and he was awarded two Army Achievement Medals, the Southwest Asia Service Medal with one bronze service star, and the Army Good Conduct Medal.  The highest rank he achieved was sergeant/pay grade E-5.

4.  On 11 May 1994, he received a memorandum of reprimand from the Commanding General of Fort Stewart, GA, for driving under the influence (DUI), failure to report an accident with damage, and improper backing.

5.  On 3 May 1995, he received a memorandum of reprimand from the Commanding General of Fort Stewart, GA, for DUI, failure to yield to an emergency vehicle, and failure to stop at a posted stop sign.

6.  On 12 May 1995, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for operating a passenger vehicle while drunk.

7.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 6 June 1995, shows he was barred from reenlistment for receiving two DUI's.  He elected not to submit a statement in his own behalf.

8.  On 31 July 1995, his commander initiated elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct.  The commander cited the reasons for this action were his two DUI's.

9.  On 4 August 1995, he was advised by consulting counsel of the basis for the contemplated separation action and of the impact of the discharge action.  He signed a statement indicating he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  He requested counsel, waived his right to an administrative board, and elected not to submit a statement on his own behalf.

10.  On 7 August 1995, the discharge authority approved the elimination packet and directed that the applicant be issued a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  On 5 September 1995, he was discharged from the service under honorable conditions in pay grade E-4 after completing 3 years, 10 months, and 1 day of creditable active service.

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 conviction by civil authorities.  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 accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

2.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows he received two general officer memoranda of reprimand, one Article 15, and a bar to reenlistment.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which is required for the issuance of a 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 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)                                         AR20100030530



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ABCMR Record of Proceedings (cont)                                         AR20100030530



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