IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001384 


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he made several attempts to upgrade his discharge and received no response.  He believes there was some injustice done him while in the Army because, while he desired to continue his service, legal counsel directed him toward discharge.  He states his personal life has been tragic and he is hopeful some good will come from the tragedy and his discharge being upgraded.

3.  The applicant provides a self-authored statement and documents in support of his application.

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 3 October 1986 and was trained in and awarded military occupational specialty 13B (Cannon Crewman).

3.  The record confirms the applicant was advanced to the rank of private first class/pay grade E-3 on 1 May 1987 and that this is the highest rank/grade he attained while serving on active duty.  His record documents no valor or significant achievement.

4.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 19 January 1988 for the wrongful use of cocaine.

5.  On 17 January 1988, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct (acts or patterns of misconduct) and informed the applicant he was recommending a GD.  The unit commander cited the applicant's use of cocaine, the fact he was counseled for failure to pay just debts, and his demonstrated unwillingness to adhere to Army standards as the basis for the separation action.

6. On 2 February 1988, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  The applicant submitted a statement in his own behalf; however, the statement is not in the record.

7.  On 19 February 1988, the separation authority approved the applicant's separation for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant receive a GD.  On 26 February 1988, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon his discharge shows the applicant held the rank of private/E-1 on the date of his discharge and he completed a total of 1 year, 4 months, and 24 days of active military service.  It further shows that during his active duty tenure he earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

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

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his GD be upgraded because he believes it is unjust and based on the tragedy he has faced and overcome in his life has been carefully considered.  However, there is insufficient evidence to support his claim of injustice and, while unfortunate, the tragedy he has suffered since his discharge does not provide a basis to support upgrading his discharge.

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for him receiving a GD instead of an under other than honorable conditions discharge.  However, it is equally clear his record of misconduct diminished his overall record of service below that meriting a fully HD.  Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20110001384



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001384



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1