IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110015930 


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 under other than honorable conditions discharge to a general discharge. 

2.  He states he had a stroke in July 2010 and is not able to work due to memory loss, speech problems, and weakness on his right side.  He is in the process of applying for Supplemental Security Income for the Social Security Administration; however, in order to complete his application he needs to know if he is eligible for benefits from the Army. 

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 21 April 1983.  After completion of training, he served in military occupational specialty 94B (Food Service Specialist). 

3.  His DA Form 2-1 (Personnel Qualification Record) shows the following:

* Item 5 (Oversea Service) – He served a tour of duty in Germany and deployed to Saudi Arabia in support of Desert Storm/Shield
* Item 9 (Awards, Decorations and Campaigns) – His most significant awards include the following:

* Army Commendation Medal 
* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal (2nd Award)
* Southwest Asia Service Medal with one bronze service star
* Kuwait Liberation Medal (Kingdom of Saudi Arabia)
* Noncommissioned Officer Professional Development Ribbon

* Item 18 (Appointments and Reductions) – Staff sergeant/E-6 was the highest grade held while on active duty

4.  A memorandum dated 20 May 1993 shows the applicant's commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 12c by reason of commission of a serious offense.  The commander noted the following reasons:

   a.  On 1 June 1990, the applicant was cited for assault consummated by battery, and drunk and disorderly conduct.
   
   b.  On 3 April 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for domestic assault on 26 January 1992.
   
   c.  On 26 May 1992, he was counseled by his first sergeant for unsatisfactory performance and being late for duty.
   
   d.  On 16 June 1992, the punishment imposed on 3 April for assault was vacated based on another assault charge he received on 7 June 1992.
   
   e.  On 15 September 1992, he was cited for wrongful use of a controlled substance (cocaine).
   
   f.  On 9 December 1992, the applicant was cited for disobeying a lawful order.
   
   g.  On 6 May 1993, he once again was charged with assault, consummated with a battery.  This charge supported a history of violent and aggressive behavior.   

5.  On 20 May 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel he completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  He also elected not to submit statements in his own behalf.  

6.  On 26 July 1993, a board of officers convened to consider the applicant's elimination, with the applicant and his counsel present.  After carefully considering all the evidence, the board found that the applicant did, by a preponderance of the evidence, demonstrate a pattern of misconduct.  The board determined the applicant’s guilt based on repeated incidences of assault and one incident of wrongful use of Cocaine.  Based on these findings, the board of officers recommended he be discharged with an under other than honorable conditions discharge.  

7.  The applicant requested a personal appearance before the Commanding General to discuss the material submitted, composition of the board, and the findings and recommendations made by the board.  His request was denied.  

8.  On an unknown date, the applicant submitted a request for upgrade of his characterization of service to an honorable or general discharge.  His request was denied.

9.  On 16 August 1993, the separation authority approved the findings and recommendations of the board of officers in the applicant's case, and directed that the applicant be discharged under the provisions of paragraph 14-12c, Army Regulation 635-200 with an under other than honorable conditions discharge and reduction to the grade of private/E-1.  Accordingly, he was discharged on 
25 August 1993. 

10.  His DD Form 214 shows he was separated under the provisions of paragraph 14-12c of Army Regulation 635-200, by reason of misconduct – abuse of illegal drugs.  He had completed 10 years, 4 months, and 5 days of net active service.  

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

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

   a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or AWOL.  Action would be taken to separate a member for misconduct when it is clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could have directed a general discharge if such was merited by the Soldier’s overall record.  

	b.  Paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions was issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  His record shows he was charged with aggravated assault on various occasions, disobeying a lawful order, and wrongful use of cocaine.  The applicant’s commander recommended he be discharged under the provisions of chapter 14 of Army Regulation 635-200 for commission of a serious offense.

4.  The evidence shows he appeared before a board of officers; he was represented by counsel; and the board considered his entire military record.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.


5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to general discharge.

6.  The fact that he is unable to work due to his current medical condition is unfortunate; however, the ABCMR does not upgrade discharges based solely on making one eligible to receive benefits.  

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110015930





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ABCMR Record of Proceedings (cont)                                         AR20110015930



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