IN THE CASE OF:	   

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110010849 


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 under honorable conditions from the Regular Army be upgraded to an honorable discharge.

2.  The applicant states since his discharge in 1995 he has been gainfully employed by the Howard County, MD Department of Corrections.  He enlisted in the U.S. Army Reserve (USAR) and has served two tours in Iraq.

3.  The applicant provides:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a letter, dated 6 May 2011, from the Howard County Department of Corrections

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.  He enlisted in the Regular Army on 13 June 1989 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  On 1 March 1993, he reenlisted for 3 years for the Service School Reenlistment Option (Intelligence Analyst).

3.  United States Army Intelligence Center and Fort Huachuca, For Huachuca, AZ Orders 215-24, dated 8 November 1994, as amended reassigned (diverted) him to the 20th Adjutant General Field Artillery Team, Fort Campbell, KY to report 3 December 1994.

4.  On 16 December 1994, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

* willfully disobeying a lawful order from a commissioned officer to begin out processing for transfer to Fort Campbell, KY
* failing to obey a lawful order issued by the Department of the Army by not reporting to Fort Campbell, KY

5.  On 12 January 1995, he was evaluated by a captain of the Medical Service Corps, Psychology Services.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

6.  On 27 January 1995, he was formally counseled and ordered to immediately begin out processing from his unit to comply with his assignment instructions to the 20th Adjutant General Field Artillery Team, For Campbell, KY.  He was advised that failure to comply with these instructions could result in court-martial proceedings or administrative elimination actions could be initiated.

7.  On 8 February 1995, his commander notified him that action was being initiated to discharge him for misconduct, commission of a serious offense under the provisions of chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with a general discharge.  The reason for the proposed action was willfully disobeying a commissioned officer and failing to obey a lawful written order issued by the Department of the Army.  The commander advised the applicant of his rights to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* request a hearing before an administrative board if he had 6 or more years of active and reserve military service at the time of separation
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

8.  After having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of Chapter 14, Army Regulation 635-200 for misconduct.  He did not submit statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

9.  His commander recommended he be separated prior to the expiration of his term of service and that he be given a general discharge.   His specific reason for recommending discharge was the applicant's willful disobedience of a commissioned officer and failing to obey a lawful written order issued by the Department of the Army.  His intermediate commander recommended he be discharged with a general discharge.

10.  Trial Counsel reviewed the separation package and determined that it ws legally sufficient for further processing.

11.  The appropriate authority waived the requirement for a rehabilitative transfer and approved the recommendation for discharge under the provisions of 
chapter 14 of Army Regulation 635-200, due to commission of a serious offense with a general discharge under honorable conditions.  

12.  On 24 February 1995, he was discharged.  He completed 5 years, 8 months, and 12 days of active service that was characterized as under honorable conditions.

13.  On 16 May 2005, he enlisted in the USAR.  He was ordered to active duty and served in Iraq from 10 September 2007 to 27 May 2008 and from 
15 December 2009 to 12 September 2010.

14.  The letter, dated 6 May 2011, from the Howard County Department of Corrections states he has been employed with them since 10 October 1995 and is in good standing.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

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

	a.  Chapter 14 deals with separation for various types of misconduct.  Paragraph 14-12c provides for the separation of a Soldier by reason of commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of chapter 14.

	b.  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.  His failure to comply with orders issued by the Department of the Army does not meet the standards of acceptable conduct and performance of duty expected of Army personnel.  He was formally counseled and advised that his failure to comply with the orders could result in court-martial proceedings or separation action.  

2.  He did not complete the term of service he contracted for.  It is clear his previous service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

3.  His subsequent employment and service in the USAR is commendable.  However, many Soldiers before and after him complied with orders from the Department of the Army, transferred to their new assignments, and went on to receive honorable discharges.  It would not be equitable to now provide him an honorable discharge when he failed to do so.

4.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the above, there is an insufficient basis to upgrade 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 that 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)                                         AR20110010849



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ABCMR Record of Proceedings (cont)                                         AR20110010849



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