BOARD DATE:	    22 December 2011

		DOCKET NUMBER:  AR20110013080 


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 (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he had a personality conflict with his noncommissioned officers (NCO's) at the time.  He states he was asked if he wanted to be discharged and he said yes.  He states he already had an HD and didn't know the second would be a GD.

3.  The applicant provides no additional evidence.

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's record shows he enlisted in the Regular Army on 6 August 1984 and was trained in and awarded military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).  On 24 February 1987, he reenlisted for 5 years.

3.  The record confirms the applicant was advanced to the rank of specialist four/E-4 on 10 February 1987 and this is the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary record includes extensive formal counseling by members of his chain of command between 29 July 1988 and 19 July 1989 for a myriad of duty performance and conduct-related issues.  It also includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 26 September 1989 for two specifications of failing to go at the time prescribed to his appointed place of duty on 7 and 12 September 1989.

5. On 27 November 1989, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, by reason of misconduct.  The commander cited the applicant's pattern of misconduct since 29 July 1988 as the basis for the action.  He also informed the applicant he intended to recommend issuance of a GD.

6.  The applicant acknowledged receipt of the separation action notification and completed an election of rights on 27 November 1989.

7.  On 27 November 1989, the separation authority approved the applicant's separation for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed issuance of a GD.  On 22 December 1989, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he held the rank of private/E-2 on the date of his discharge and he completed a total of 5 years, 4 months, and 17 days of active military service.

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

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

13.  Chapter 2 of Army Regulation 635-5 contains instructions for preparing the DD Form 214.  The instructions for item 18 (Remarks) state it is mandatory to include an entry indicating whether the Soldier has/has not completed his/her first full term of service.  It states that routinely a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  It further requires that the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)" will be included for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to an HD because he had prior honorable service and his discharge was the result of a personality conflict with his NCO's has been carefully considered.  However, there is insufficient evidence to support his claim of injustice.

2.  The applicant's separation was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  By regulation, a discharge under other than honorable conditions is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for receiving a GD instead of a discharge under other than honorable conditions.  It is equally clear the applicant's record of misconduct diminished his overall record of service below that meriting a fully HD.

4.  Absent any evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of his discharge.  Further, there are no provisions of law or regulation that would allow the removal of his discharge from his record.

5.  The applicant is advised that administrative corrections to his DD Form 214 will be made to document his initial period of honorable active duty service.

6.  The evidence shows the applicant's records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative errors in the records of the individual concerned should be corrected.  Therefore, the Board requests that ARBA CMD administratively correct the records of the individual concerned by adding the following mandatory entries to item 18 of his DD Form 214:

	a.  "SOLDIER COMPLETED FIRST FULL TERM OF SERVICE" and

	b.  "CONTINUOUS HONORABLE SERVICE FROM 19840806-19870223"



      __________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)                                         AR20110013080



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ABCMR Record of Proceedings (cont)                                         AR20110013080



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