BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020969 


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 be upgraded to honorable.

2.  He states, in effect, his discharge document shows he was separated due to a serious offense, which was disobeying a direct order to put on his shirt.  He explains that it was 105 degrees in the kitchen and he could not see putting on a jacket in that hot temperature.  

3.  He provides 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 16 May 1989.  After completing basic and advanced individual training he was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 4 May 1990, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for unknown reason(s) and his punishment was reduction to the rank of private (PVT)/E-1 (suspended).   On 14 June 1990, the suspended punishment was vacated after he willfully disobeyed a lawful order from a noncommissioned officer.  The NJP proceedings are not contained in the available records.  

4.  On 17 November 1990, NJP was imposed against him under the provisions of Article 15, for violating Article 121 of the UCMJ by stealing a cassette tape (a value of $4.95) from the Army and Air Force Exchange Service.

5.  On 26 November 1990, the unit commander notified the applicant of his intent to recommend him for separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, commission of a serious offense, specifically he listed the following as a basis for his recommendation:

* 17 November 1990, field grade Article 15, larceny
* 30 October 1990, negative counseling, failure to prepare
* 30 September 1990, negative counseling
* 30 August 1990, chapter counseling

6.  On 27 November 1990, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board, and to consult with and be represented by counsel.  He elected not to submit statements on his behalf.  

7.  He acknowledged he understood that he may encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood that as a result of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws.

8.  He also acknowledged that he understood if he received a discharge which was less than fully honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

9.  On 27 November 1990, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14-12c with the issuance of a General Discharge Certificate.

10.  His DD Form 214 shows he was discharged on 13 December 1990 under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct - commission of a serious offense with a characterization of service of general under honorable conditions.  He was credited with completing 1 year, 6 months, and 28 days of active service.

11.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM).  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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.
   
   b.  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.



13.  The MCM (1984 Edition) provides the maximum punishment for Article 121, larceny, wrongful appropriation of military property.  The manual states the maximum punishment for military property of a value of $500.00 or less is a Bad Conduct Discharge (BCD), a forfeiture of all pay and allowances, and confinement for 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues his serious misconduct consisted of disobeying a direct order to put on his shirt or jacket.  The applicant accepted NJP and the punishment was suspended; however, it was vacated after he disobeyed a lawful order.  The NJP proceedings are not contained in the available record.  This offense was taken into consideration during the discharge process; however, it was not the main basis for the separation action.

2.  The evidence of record shows the applicant's commander recommended that the applicant be separated under the provisions of Army Regulation 635-200 paragraph14-12c, for misconduct-commission of a serious offense, based on his field grade Article 15 for larceny, in addition to the above offense, and other incidents for which he was counseled.  

3.  In accordance with the MCM the maximum punishment for larceny of military property of a value of $500.00 or less is a BCD, a forfeiture of all pay and allowances, and confinement for 6 months.  Therefore, his argument, in effect, that he did not commit a serious offense that would justify his discharge showing "commission of a serious offense" is not supported by the available evidence. 

4.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

5.  His record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  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)                                         AR20110020969



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ABCMR Record of Proceedings (cont)                                         AR20110020969



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