IN THE CASE OF:	  

		BOARD DATE:  10 January 2012

		DOCKET NUMBER:  AR20110014085 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was informed that one's discharge can be changed after 10 years.

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 enlisted on 26 November 1991 for a period of 4 years and training as a medical specialist.  He completed training at Fort Knox, Kentucky, and his advanced individual training (AIT) at Fort Sam Houston, Texas.  He was determined to have fraudulently enlisted while in AIT; however, his commander waived the fraudulent enlistment and authorized his retention in the service.

3.  He was transferred to Dugway Proving Grounds, Utah, for his first assignment on 14 June 1992.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) signed by the applicant which shows he was discharged under other than honorable conditions due to misconduct on 16 December 1993 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c.  He completed 2 years and 22 days of active service.

5.  On 29 June 1998, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to general under honorable conditions.  He contended at that time that the reason he struck a noncommissioned officer was because he was seeing a psychiatrist and was on anti-depressant drugs which affected his moods.

6.  The ADRB found no evidence to support his claims and determined his discharge was both proper and equitable under the circumstances.  The ADRB voted unanimously to deny his request on 18 September 1998.

7.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

8.  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.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that 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.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offense.  There has never been any provision for an automatic upgrade of a discharge less than fully honorable.  Each case is decided upon its merits, and the applicant's overall service simply did not rise to the level of a fully honorable discharge or a discharge under honorable conditions.

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 that 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)                                         AR20110014085



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ABCMR Record of Proceedings (cont)                                         AR20110014085



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