IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110017583 


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 he has acquired a Bachelor of Science Degree in Engineering and a Master of Science Degree in Applied Sciences.  It has been approximately 20 years since his discharge and he would like to clear his military record.  He has not had any negative offenses since his discharge.  He also had no issues with jobs or career and he has been very productive since his discharge.

3.  The applicant does not provide any additional documents.

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 (RA) on 1 December 1987.  He was trained in, awarded, and served in military occupational specialty (MOS) 98G (Electronic Warfare/Signal Intelligence Voice Interceptor).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 19 December 1990, for making and uttering 5 dishonored checks on
27 October 1990, totaling $81.50
* 24 January 1991, for disobeying a lawful order from a noncommissioned officer (NCO) and for communicating a threat to the same NCO on
11 January 1991
* 29 April 1991, for failing to obey lawful order from his first sergeant on
22 April 1991

4.  On 17 May 1991, the applicant's unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 12b, for a pattern of misconduct with an under other than honorable conditions discharge.  The applicant acknowledged receipt of the notification.

5.  The unit commander subsequently recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 12b with an under other than honorable conditions discharge.

6.  On 4 June 1991, having consulted with legal counsel, he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He elected to submit a statement in his own behalf.  He further voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a rehabilitative transfer out of his present unit.

7.  On 24 June 1991, the separation authority disapproved the applicant’s request for a conditional waiver and directed an administrative separation board be convened to determine the appropriate disposition of the recommendation for the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b with an under other than honorable conditions discharge.

8.  On 15 October 1991, an administrative separation board convened in the applicant's case.  The board results are not available for review.

9.  On 12 November 1991, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for driving while intoxicated (DWI).

10.  On 22 November 1991, having considered the findings and recommendation of the administrative separation board, the separation authority directed the applicant's discharge under the provisions of Army Regulation 635-200,
chapter 14, paragraph 14-12b for a pattern of misconduct, with a general (under honorable conditions) discharge.

11.  On 5 December 1991, the applicant was discharged accordingly.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 4 years and 5 days of creditable active service.

12.  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, 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.

13.  Army Regulation 635-200, paragraph 3-7a of the same regulation 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 evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record reveals a disciplinary history that includes three
Article 15s and a GOMOR.  As a result, his record was not sufficiently meritorious to support the issue of an honorable discharge by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.

3.  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)                                         AR20110017583



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ABCMR Record of Proceedings (cont)                                         AR20110017583



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