IN THE CASE OF:  

		BOARD DATE: 6 December 2011  

		DOCKET NUMBER:  AR20110011879


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states that when he was discharged it would be upgraded to honorable in 90 days.  He divorced his spouse because she was unfaithful.  She would not let him talk to his children and he had threatened to take them to Florida.  She moved to Ohio and the children lived in a very bad area.  His father had passed away two years after he was discharged.  If he had remained in the Army, he would have requested a hardship discharge to take care of his mother and sister.  He always flies the American Flag in his front yard and he is still proud he served in the Army.

3.  The applicant provides:

* a self-authored statement
* a statement from his brother, dated 10 May 2011
* his father's Certificate of Death
* his son's Academic Honor Certificate for the 2001-2002 school year
* his son's High School Diploma, dated 9 June 2002
* his son's Street Rod and Custom Fabrication with Automotive Technology diploma, dated 19 September 2008


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 19 May 1982.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewman).  He later reclassified to MOS 63H (Track Vehicle Repairer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service) he served in U.S. Army Europe (Germany) from 21 June 1984 through 4 April 1987, and South Korea from 30 May 1991 through 8 June 1992; and

	b.  item 9 (Awards, Decorations and Campaigns) the:

* Army Service Ribbon
* Army Achievement Medal (2nd Award)
* Overseas Service Ribbon with Numeral 2
* Army Good Conduct Medal (3rd Award)
* Army Achievement Medal (7th Award)
* Army Commendation Medal (2nd Award)
* Driver and Mechanic Badge with Driver-W Bar
* Noncommissioned Officer Professional Development Ribbon with
Numeral 2
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  On 12 December 1992, the applicant was charged with driving while intoxicated (DWI) after refusing to submit to a lawfully requested test to measure 


his blood alcohol content (BAC) level.  He received a general officer memorandum of reprimand for this incident.  

5.  On 25 July 1993, he was charged with DWI when his BAC was .18%, which exceeded the legal limit.  He received a general officer memorandum of reprimand for this incident.

6.  On 10 November 1993, the applicant's unit commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, for commission of a serious offense in that he had two consecutive DWI offenses within 6 months.  The applicant was advised of his rights and of the separation procedures involved.

7.  On the same date, the applicant consulted with counsel and he elected to submit a statement in his own behalf.  He waived consideration of his case by an administrative board contingent upon his receiving a characterization of service or description of separation of no less favorable than general under honorable conditions.  In his statement he stated for the past 11 years in the military he had a very good record.  He always tried to use his technical and tactical knowledge to the best of his ability in training or working on any type of vehicle the Army maintained.  He tried to put the military first.  He always tried to ensure his assigned tasks were timely accomplished and either at or above standards.  He understood his behavior warranted his discharge, but he felt an under other than honorable conditions discharge would make it very hard for him to make a new start in the civilian work force.  For these reasons, he requests a general discharge.

8.  On 18 November 1993, the unit commander recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for the commission of a serious offense, specifically, his two DWI offenses.  On 1 December 1992, the intermediate commander recommended approval with a General Discharge Certificate.

9.  On 2 December 1993, the separation authority, a major general, approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with a General Discharge Certificate.  On
22 December 1993, the applicant was discharged accordingly.  He completed
11 years, 7 months, and 4 days of creditable active service.

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


11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A dishonorable discharge was authorized for offenses under Article 111, UCMJ for drunk driving.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel:

	a.  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 regulation.

	b.  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.  The supporting documentation the applicant provided are noted.  However:

	a.  there is no substantiating evidence of record that he was told his discharge would be automatically upgraded;

	b.  considering he unequivocally bargained for a general discharge the assertion he was promised an honorable discharge is singularly unconvincing;

	c.  the accomplishments of the applicant's offspring are irrelevant to the issue of the characterization of his discharge; and

	d.  his post-service pride and patriotism are insufficient evidence to change the characterization of his discharge.
2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110011879



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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