IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110010082 


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 the character of his discharge to honorable.

2.  He essentially states:

* he was discharged due to misconduct, commission of a serious offense
* his command received a poor investigation from his command and he received no help from his higher command or the Army
* the civilian charge was not right, but he received no help to fight it from anyone

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3975 (Military Policy Report)
* DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action)
* three personal or character references
* Order of Commitment
* Uniform Citation
* Arrest Warrant


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 2 November 1987.  

3.  His record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting adverse counseling sessions from 
6 March to 10 May 1989 for writing bad checks, cruelty to animals, two occasions of non-payment of just debts, and three occasions of absence without leave (AWOL).

4.  He submitted and his record contains:

a. DA Form 3975, dated 3 March 1989, which shows he was charged with 2nd degree criminal mischief for defacing and a damaging a trailer between 24 February and 1 March 1989;

b. a uniform citation, dated 3 March 1989, which shows he was arrested by the Oak Grove, Kentucky police department and charged with 2nd degree criminal mischief and 2nd degree cruelty to animals;

c. an Arrest Warrant, dated 1 May 1989, which shows a warrant was issued to arrest him for theft by deception;

d. an order of commitment, Christian county jail, dated 9 May 1989, which shows he was arrested on the same date; and

e. he was charged with deception (bad check) under $100.00 by the Christian County, KY court.

5.  On 14 August 1989, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c, for misconduct – commission of a serious offense.

6.  On the same date, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by requesting that his case be considered by an administrative separation board.  He did not submit a statement in his own behalf.

7.  On 14 August 1989, his company commander recommended that he be discharged with a general, under honorable conditions discharge for a serious offense, misconduct (commission of an serious offense) under the provisions of paragraph 14-12(c), Army Regulation 635-200.  The commander also recommended that rehabilitative requirements be waived.

8.  On 17 August 1989, his intermediate commander recommended approval of the discharge action.

9.  On 18 August 1989, the separation authority approved the applicant’s discharge under the provisions of chapter 14-12c, Army Regulation 635-200 and directed that he be issued a General Discharge Certificate.

10.  On 25 August 1989, he was discharged.  The DD Form 214 he was issued contains the following entries:

* item 12c (Net Active Service this Period) 1 year, 9 months, and 24 days
* item 23 (Type of Separation) discharge
* item 24 (Character of Service) under honorable conditions (general)
* item 25 (Separation Authority) Army Regulation 635-200, paragraph 
14-12c
* item 28 (Narrative Reason for Separation) misconduct commission of a serious offense

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant submitted three third-party statements attesting to his character favorably as a hard worker who is reliable and trustworthy.



13.  References:
   
   a.  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, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  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 considered appropriate.

   b.  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.  It is commendable that the applicant has developed a reputation for being a hard worker.  However, his post-service conduct alone is insufficient to support an upgrade to his discharge.  

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct commission of a serious offense with a general discharge.  

3.  The evidence of shows the applicant had a disciplinary record of writing bad checks, indebtness, cruelty to animals, and criminal mischief.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Therefore, his service does not warrant an upgrade of his discharge to an 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)                                         AR20110010082



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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