IN THE CASE OF:	  

		BOARD DATE:	    19 April 2012

		DOCKET NUMBER:  AR20110019909 


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, in effect, an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he served over three-quarters of his 3-year enlistment commitment and he had some hardships with his family at the time.  Additionally, he states that after he was demoted it affected his morale as a Soldier and taunted him psychologically.  Prior to that, he was an outstanding Soldier.

3.  The applicant did not provide any 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 records show he enlisted in the Regular Army on 31 August 1988 and he held military occupational specialty 88M (Motor Transport Operator).  He served in Korea from January 1989 to January 1990.  He was awarded or authorized the:

* Army Achievement Medal
* National Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Grenade Bar
* Marksman Marksmanship Qualification Badge with Rifle Bar

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class/E-3 on 
1 August 1989.  This item also shows he was reduced to private (PV2)/E-2 on 6 July 1990.

4.  On 21 February 1991, court-martial charges were preferred against him for one specification of wrongfully distributing marijuana, nine specifications of stealing checks, eight specifications of falsely writing checks with insufficient funds, and one specification of making a false official statement.

5.  On 10 April 1991, additional charges were preferred against him for four specifications of stealing checks.  

6.  On 21 April 1991, he departed his unit in an absent without leave (AWOL) status and on 24 May 1991, he was dropped from Army rolls as a deserter.  

7.  He was arrested by civil authorities and placed in civil confinement on 24 May 1991 for the civilian charges of trafficking in drugs.  He was convicted by the Superior Court of the State of Maine of aggravated trafficking in schedule Z drugs and sentenced to 1 year in confinement.  He was ultimately returned to military control on or about 9 September 1991.  

8.  On 17 February 1992, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-5 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct – commission of a serious offense (conviction by civil authorities).  Specifically, the immediate commander cited the applicant's conviction for drug trafficking and AWOL.  

9.  On 6 April 1992, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel who advised him of the:

* basis for the contemplated separation action for misconduct
* type of discharge he could receive and its effect on further enlistment or reenlistment
* possible effects of this discharge
* procedures and rights that were available to him

10.  He waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than an under honorable conditions.  Additionally, he elected not to submit a statement on his own behalf.  He further acknowledged he understood that:

* he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws

11.  On 23 April 1992, the immediate commander reviewed the applicant's conditional waiver, denied his request, and recommend the issuance of an under other than honorable conditions discharge.

12.  Between 24 and 30 April 1992, his immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.  

13.  On 9 June 1992, the separation authority disapproved the conditional waiver to the administrative separation board and approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – commission of a serious offense – and directed the applicant be furnished an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 24 September 1992.

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 24 September 1992 under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge.  This form further confirms he completed a total of 2 years, 7 months, and 18 days of creditable active military service and he had lost time from 4 to 8 September 1990 and 24 April 1991 to 24 September 1992.
15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was 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 direct a general discharge if such was merited by the Soldier's overall record.  

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded.

2.  The evidence of record shows the applicant committed various offenses ranging from writing bad checks to wrongfully distributing marijuana.  As soon as his chain of command initiated court-martial charges against him, he went AWOL and was dropped from Army rolls as a deserter.  While in a desertion status, he was apprehended by civil authorities and convicted for trafficking in illegal drugs.

3.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct. 

4.  There is no evidence in his records and he did not provide substantiating evidence that his demotion to PV2/E-2 on 6 July 1990 caused his extensive history of misconduct.  Even if his demotion affected his morale, there would have been many other legitimate ways to address his morale had he chosen to use them.


5.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards.  Therefore, he is not entitled to the requested relief.

6.  Contrary to his contention that his service was outstanding, the evidence of record shows he had an extensive history of misconduct.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20110019909



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019909



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1