IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110009768 


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 be upgraded to fully honorable and that his combat service be reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that his general discharge should be upgraded to a fully honorable discharge because of his combat service.  He also states his combat service should be reflected on his DD Form 214.

3.  The applicant provides copies of his DD Form 214, discharge notification letter, and the Army Discharge Review Board (ADRB) Case Report and Directive.

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 was born on 22 August 1969 and was serving in the California Army National Guard (CAARNG) as a unit supply specialist when he enlisted in the Regular Army in Los Angeles, California in the pay grade of E-4 on 8 October 1998 for a period of 3 years.  He was transferred to Fort Hood, Texas for his first duty assignment. 

3.  On 13 February 1999, nonjudicial punishment (NJP) was imposed against him for being disrespectful towards a noncommissioned officer (NCO).

4.  He deployed to Bosnia – Herzegovina with his unit on 10 March 1999 and on 17 May 1999 NJP was imposed against him for being disrespectful towards a commissioned officer and for lying to an NCO. 

5.  On 17 June 1999, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b due to a pattern of misconduct.  He cited the applicant’s disciplinary record and his failure to respond to repeated counseling sessions as the basis for his recommendation.  He also informed the applicant that he was recommending that he be discharged under other than honorable conditions.

6.  On 18 June 1999, after consulting with counsel, the applicant elected to exercise his right to appear before an administrative separation board and he submitted a statement in his own behalf whereas he asserted that while he was not a perfect Soldier he was not as bad as he was being portrayed and that his
6 years in the CAARNG should be taken into consideration when considering his character of discharge.  He also contended that his chain of command was picking on him and he believed that he was not being treated fairly. 

7.  On 20 June 1999, he submitted a request for a conditional waiver in which he agreed to waive his rights in return for a general discharge.

8.  On 9 July 1999, the appropriate authority (a major general) approved his request for a conditional waiver and directed that he be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct.  He directed that the applicant be furnished a General Discharge Certificate.

9.  On 18 July 1999, he departed Bosnia and returned to Fort Hood, Texas where he remained until he was discharged on 10 September 1999 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct with a general discharge.  He had served 11 months and 3 days of active service and his DD Form 214 that was issued at the time does not reflect any foreign service or his deployment to Bosnia for 4 months and 9 days.

10.  On 29 December 2009, he applied to the ADRB for an upgrade of his discharge to fully honorable.  On 15 October 2010 after reviewing all of the facts and circumstances of his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request.

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 commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

12.  Paragraph 3-7a of Army Regulation 635-200 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. 

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for:

	a.  block 12f (Foreign Service) enter the total amount of foreign service completed during the period covered by the DD Form 214.

	b.  block 18 (Remarks) for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)."  





DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant’s contentions regarding his discharge have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses.  The applicant’s overall service simply does not rise to the level of a discharge under honorable conditions.

4.  However, the applicant served in Bosnia from "19990310 – 19990718" a period of 4 months and 9 days and he is entitled to have this service reflected on his DD Form 214.

 BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting the entry “0000  00  00” from block 12f of his DD Form 214
* adding the entry “0000  04  19” in block 12f of his DD Form 214
* adding the entry “Service in Bosnia from 19990310 through 19990718” to block 18 of his DD Form 214




2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his general discharge.  




      _______ _   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)                                         AR20110009768



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ABCMR Record of Proceedings (cont)                                         AR20110009768



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