BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012706 


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 be upgraded to an honorable discharge.

2.  The applicant states he "followed through and served in Operation Desert Storm."

3.  The applicant provides no additional evidence in support of his application.

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 4 November 1986 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  On 26 February 1987, he was assigned to the 3rd Battalion, 11th Armored Cavalry Regiment in Germany.  He was promoted to specialist/pay grade E-4 on 1 October 1988.  

3.  He was discharged on 13 September 1989 and immediately reenlisted on 
14 September 1989 for a period of 4 years.  

4.  On 24 January 1990, he accepted nonjudicial punishment (NJP) for:

* unlawfully striking his wife with a closed fist
* causing a breach of the peace
* wrongfully damaging by force a door and two glass panes

5.  On 11 April 1990, he was assigned to the 3rd Battalion, 82nd Field Artillery at Fort Hood, TX.  He deployed with his unit to Saudi Arabia on 11 October 1990.

6.  On 16 November 1990, he was convicted by a summary court-martial at Camp Red Dragon's Den, Saudi Arabia, for being absent without leave (AWOL) from 4 September to on or about 8 October 1990.

7.  On 12 February 1991, his commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b, chapter 14 of Army Regulation 635-200 (Personnel Separations) because he had been convicted by a summary court-martial for being AWOL from 14 September to 8 October 1990.
The commander further notified the applicant he was recommending that he receive a general discharge under honorable conditions.  

8.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

9.  On 13 February 1991, 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 of 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.

10.  On 14 February 1991, his commander recommended him for separation from the Army prior to the expiration of his term of service with a General Discharge Certificate. 

	a.  He did not want the applicant in the battery during the current combat environment because of the morale problems he presented.  His attitude toward the Army and the unit is one of contempt.

	b.  The applicant continuously had problems obeying orders from noncommissioned officers and abiding by the unit's SOP (standing operating procedures).

	c.  The applicant had been reduced three pay grades in the last year.  He held the Army to blame for punishing him for his wrongful actions.

11.  On 15 March 1991, the appropriate authority approved the recommendation for discharge of the applicant, directed he be issued a General Discharge Certificate, and that he not be transferred to the Individual Ready Reserve.

12.  On 20 May 1991, he was discharged.  He completed 1 year, 8 months, and 7 days of active service on this enlistment that was characterized as under honorable conditions.  He completed a total of 4 years, 5 months, and 24 days of active service.

13.  On 13 November 1995, the Army Discharge Review Board (ADRB) notified him his request for an upgrade had been denied.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  That included discreditable conduct and conduct 

prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  He had completed 2 years and 10 months of active service in the Regular Army when he reenlisted.  He had been promoted to specialist on 1 October 1988.  Therefore, he was well aware of the standards of acceptable conduct and performance of duty expected of Army personnel.

2.  Since his reenlistment on 14 September 1989, he had accepted NJP for assault, breach of the peace, and theft.  He also was convicted by a summary court-martial for being AWOL.  He did not complete the term of service he contracted for.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army Personnel.  

3.  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.

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)                                         AR20110012706



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012706



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1