IN THE CASE OF:
BOARD DATE: 26 May 2011
DOCKET NUMBER: AR20110000676
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 under honorable conditions to an honorable discharge.
2. The applicant states:
* he was not allowed to go home to his family for personal reasons
* he was in trouble for allegedly taking a woman's wallet which he found and turned in to his commanding officer
* he admitted to taking it in order to be discharged so he could go home
* he wants to use his Department of Veterans Affairs (VA) benefits
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 enlisted in the U.S. Army Reserve on 27 January 1982. Upon completion of his military occupational specialty (MOS) training on 4 July 1982, he was released from initial active duty training under the Reserve Enlistment Program and awarded MOS 13B (Cannon Crewman). The applicant enlisted in the Regular Army on 2 March 1983. The highest rank/grade he attained while serving on active duty was private first class/E-3.
3. The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on four occasions for the offenses indicated:
a. on 7 April 1984, for stealing a stereo cassette player and a 12-inch television set;
b. on 17 May 1985, for failing to go at the time prescribed to his appointed place of duty;
c. on 18 June 1985, for wrongfully and unlawfully making a false statement under oath; and
d. on 29 August 1985, for two instances of failing to go at the time prescribed to his appointed place of duty and for willfully disobeying a lawful order from a superior noncommissioned officer.
4. The applicant received a Bar to Reenlistment Certificate on 14 August 1984.
5. The applicant was confined by civilian authorities on 7 August 1984 for the charge of driving under the influence. The applicant paid a fine of $300.00 and was released on 10 August 1984.
6. His records contain a Separation Action Control Sheet prepared on 13 September 1985 which shows the applicant's separation process. However, the applicant's separation processing facts and circumstances are not available for review with this case.
7. On 4 November 1985, the applicant was discharged under Army Regulation 635-200 (Personnel Separations), chapter 14, section II with a general discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for a civilian conviction. He completed 2 years and 8 months of creditable active military service during the period under review.
8. The applicant previously applied to the ABCMR on 30 May 1989. His application was returned without prejudice for failure to exhaust administrative remedies.
9. There is no evidence in the applicant's personnel service record that shows the applicant sought assistance from his chain of command for family issues or that he was not allowed to go home for personal reasons.
10. 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 provisions of this regulation.
11. 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 that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.
2. The applicant alleges that family issues required that he return home for personal reasons, but he was not allowed to go. There is no evidence in his military records and the applicant has not provided sufficient evidence that shows he sought assistance from his chain of command to address this issue. Additionally, there is no evidence that shows the applicant's misconduct was a direct result of the alleged family issues. Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.
3. In the absence of evidence to the contrary it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
4. The applicant's record includes evidence which shows he received nonjudicial punishment on four occasions, a Bar to Reenlistment, and was confined by civil authorities.
5. Based on his record of indiscipline, the applicant's 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.
6. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.
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) AR20110000676
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ABCMR Record of Proceedings (cont) AR20110000676
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