BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110002905 


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.

2.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and service record to show:

* Army Commendation Medal
* 50,000-Mile Driver Safety Award
* Robin Sage Course completion
* complete military education
* complete jump log
* complete assignments

3.  He states when he was discharged he was told if he pled guilty, his records would be restored in a 6-month period and he would receive his G.I. benefits.  He states this agreement was made by his battalion command sergeant major, company commander, and first sergeant and guaranteed by his brigade commander.  He states he took the fall for his chain of command and lived up to his part of the stipulations.  He believes he earned this upgrade.

4.  He 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 request for correction of his records to show his assignments is acknowledged.  However, he did not specify the military document he wants corrected or a specific error.  Therefore, this portion of his request will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 18 February 1987 for a period of 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 43E (Parachute Rigger).  He also completed basic airborne training.

4.  A review of his service record revealed derogatory information as follows:

	a.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three occasions for wrongfully communicating a threat to kill a corporal and failing to go at the time prescribed to his place of duty.

	b.  He received numerous adverse counselings for being disrespectful and communicating a verbal threat to a noncommissioned officer, stealing private property, and failing to report.

	c.  He received a letter of reprimand for driving while intoxicated.

	d.  He received a bar to reenlistment.

5.  His DA Form 2-1 (Personnel Qualification Record) shows:

* item 9 (Awards, Decorations, and Campaigns) – no Army Commendation Medal or 50,000-Mile Driver Safety Award


* item 17 (Civilian Education and Military Schools) – no Robin Sage Course
* item 35 (Record of Assignments) – he was assigned to Fort Jackson, SC; Fort Benning, GA; Fort Lee, VA; and Fort Bragg, NC; during his active duty service

6.  His service record does not include orders or a recommendation for award of the Army Commendation Medal.

7.  Army Regulation 600-8-22 (Military Awards) does not identify the 50,000-Mile Driver Safety Award as an authorized award.

8.  His service record doesn't include evidence that shows he completed 40 hours or more of formal in-service training in the Robin Sage Course.

9.  His service record contains a memorandum, dated 22 August 1989, which requested termination of his airborne status for inability to Soldier and misconduct.  The memorandum also shows he had 28 months on jump status.  His service record does not include a jump log.

10.  The company commander notified the applicant of his recommendation for the applicant's separation for commission of a serious offense under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c.  The reasons for the proposed action were the applicant's threats to kill a Soldier and other members of the detachment.  The applicant was advised of his rights.

11.  He acknowledged notification of the separation action, consulted with legal counsel, and did not submit statements in his own behalf.

12.  The separation authority approved a rehabilitative transfer waiver and the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense with issuance of a General Discharge Certificate.

13.  On 23 October 1989, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 2 years, 8 months, and 6 days of creditable active service.



14.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

		(1)  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.

		(2)  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.

	b.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.

		(1)  Paragraph 2-4g(13) states awards and decorations are listed for all periods of service in the priority sequence specified in Army Regulation 600-8-22.

		(2)  Item 14 (Military Education) will list formal in-service training courses of 40 hours or more successfully completed during the period of service covered by title, length in weeks, and month and year completed.

	c.  Army Regulation 600-8-22 states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while 


serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	d.  Title 10, U.S. Code, section 1130, provides the legal authority for 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was told his records would be restored in a 6-month period if he pled guilty is acknowledged.  However, the Army does not have a policy that provides for restoration of records (or upgrade of discharges) based on the passage of time.

2.  His service record shows he received three Article 15's, numerous adverse counselings, a letter of reprimand, and a bar to reenlistment.

3.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14 of Army Regulation 635-200 for misconduct.  It appears the separation authority determined the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a fully honorable discharge and the applicant has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

4.  His service record is void of evidence which shows he was recommended or awarded the Army Commendation Medal.  Therefore, there is no basis for amending his DD Form 214 to show this award.

5.  His request for correction of his DD Form 214 to show award of the 
50,000-Mile Driver Safety Award is acknowledged.  Since the governing awards regulation does not identify the 50,000-Mile Driver Safety Award as an authorized award, there is no basis for granting this portion of his request.

6.  His service record is void of evidence and he has not provided any evidence that shows he completed the Robin Sage Course.  Therefore, there is no basis for amending his DD Form 214 to show this course.

7.  His request to complete his jump log is acknowledged.  However, his service record does not contain this document.  Therefore, there is insufficient evidence with which to grant the requested relief.  His service record does, however, contain a memorandum, dated 22 August 1989, which shows he had 28 months on jump status when his airborne status was terminated for misconduct.
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)                                         AR20110002905



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ABCMR Record of Proceedings (cont)                                         AR20110002905



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