IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110021929


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 the characterization of his discharge, from under honorable conditions (general) to honorable.  As a secondary issue, the applicant requests the award of active service credit, for a minimum of 2 years, by reason of an improper and unjust administrative separation. 

2.  The applicant states his discharge was improper and prejudicial error occurred when he was denied the rights available to enlisted personnel in administrative discharge proceedings.  He further states his discharge is unjust, by reason of hardship, in that he was denied adequate counsel.

3.  The applicant provides:

* a 2-page, self-authored statement
* 22 third-party letters of support and character reference from family members, friends, and co-workers
* a copy of the DD Form 491 (Summarized Record of Trial) pertaining to his trial by special court-martial
* 5 DA Forms 7223 (Base System Civilian Evaluation Report)
* a printout of his credit score from the three credit monitoring services
* 3 Internal Revenue Service (IRS) Forms 1040A (U.S. Individual Income Tax Return) for the years 2008, 2009, and 2010
* 2 Motions to Dismiss from the State of Texas, in the County Court at Law of Bell County, TX, dated 8 July 1991


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, upgrade of the applicant's discharge characterization, from under honorable conditions (general) to honorable, and the award of active service credit, for a minimum of 2 years, by reason of an improper and unjust administrative separation.  

2.  Counsel states the applicant's discharge was improper.  In a 7-page brief, he contends:

   a. The applicant's discharge was improper and prejudicial error occurred when his administrative separation failed to be approved by the proper authority in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 1-19.

   b. The applicant's discharge was improper and prejudicial error occurred when his command failed to provide adequate counseling and recognition of his rehabilitation potential.

   c. The applicant's discharge was unjust because he did not receive adequate counseling related to the adverse impact on his veteran benefits at the time he was discharged with a derogatory characterization of military service prior to the expiration of his term of service.

3.  Counsel provides no additional evidence in support of the applicant's request.

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 10 May 1989.  He completed training and he was awarded military occupational specialty 31L (Wire System Installer).
3.  At a special court-martial at Fort Hood, TX, he pled guilty to 3 specifications of a single Charge of absenting himself from his unit (absent without leave (AWOL)), during the following periods:  

* from on or about 5 March 1991 to on or about 9 March 1991
* from on or about 11 March 1991 to on or about 30 March 1991
* from on or about 16 March [sic, should read April] 1991 to on or about      8 June 1991

4.  On 9 July 1991, as indicated on Special Court-Martial Order Number 16, Headquarters, Fort Hood, Fort Hood, TX, dated 20 August 1991, the court found him guilty of all specifications of the Charge, and sentenced him to confinement for 3 months, forfeiture of $502.00 per month for 3 months, and reduction in rank to private/E-1. 

5.  His commander notified him of her intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 12c, for misconduct – commission of a serious offense.  His commander cited his court-martial conviction, 3 periods of AWOL, 10 dishonored checks, and              6 negative counseling statements as the reasons for her proposed action.  On      5 September 1991, the applicant acknowledged receipt of the notification.

6.  On 10 September 1991, he consulted with legal counsel and he was advised of the basis for the contemplated separation and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected to be represented by counsel; however, he elected not to submit statements in his own behalf.  

7.  His immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 12c, for misconduct – commission of a serious offense.

8.  On 12 September 1991, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 12c, and directed he receive a General Discharge Certificate.  On 18 September 1991, he was discharged accordingly.  His DD Form 214 shows:

* Item 12c (Record of Service – Net Active Service This Period) he was credited with the completion of 1 year, 11 months, and 17 days of net active service
* Item 28 (Narrative Reason for Separation) he was discharged by reason of misconduct – commission of a serious offense

9.  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

10.  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.

11.  The applicant provides a 2-page, self-authored statement, 22 third-party letters of support and character reference from family members, friends, and co-workers, and numerous other documents attesting to his duty performance and financial reliability.  In his 2-page, self-authored statement, he describes the environment at his different duty locations, acknowledges the mistakes he made throughout his service, and describes his efforts at personal and professional growth following his discharge.  His 22 third-party letters of support and character reference attest to his strength of character, positive personal demeanor, and attributes as a friend and co-worker. 

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

   a. Paragraph 1-19b, of the regulation in effect at the time, states, in pertinent part, that separation per this regulation normally should not be based on conduct which has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted.  Accordingly, administrative separations under the provisions of chapters 11, 13, 14 and 15 are subject to the following restrictions.  No Soldier will be considered for administrative separation because of conduct that has been the subject of judicial proceedings resulting in an acquittal (emphasis added) or action having the effect thereof. 
            
   b. Paragraph 1-19c, of the regulation in effect at the time, states the provisions of paragraph 1-19b do not preclude a Soldier convicted by a court-martial, whose sentence does not include a punitive discharge, from being processed for administrative separation under chapters 11, 13, 14, or 15 at any time after sentencing.  Conduct that was the subject of such a court-martial may be considered in determining retention or separation and, if appropriate, characterization of service. 

   c. Paragraph 1-21, of the regulation in effect at the time, states, in pertinent part, that Commanders who are special court-martial convening authorities are authorized to order the separation or release from active duty, under the provisions of chapter 14 of this regulation, when discharge under other than honorable conditions is not warranted under paragraph 3-7c, and the notification procedure is used.  An Honorable discharge may be ordered only when the commander exercising general court-martial jurisdiction has authorized the exercise of separation authority in the case.

   d. Paragraph 2-2, of the regulation in effect at the time, states, in pertinent part, that when the reason for separation requires notification, the commander will notify the Soldier in writing that his or her separation has been recommended per this regulation.  The commander will cite specific allegations on which the proposed action is based, and will also include the specific provisions of this regulation authorizing separation.  The Soldier will also be advised whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the Army.  The Soldier will be advised of the least favorable characterization of service or description of separation he or she could receive.  The Soldier will be advised of the type of discharge and character of service recommended by the initiating commander, and that intermediate commander(s) may recommend a less favorable type of discharge and characterization of service than that recommended by the initiating commander.  However, the separation authority is not bound by the recommendations of the initiating or intermediate commander(s) and has complete discretion to direct any type of discharge and characterization of service authorized by applicable provisions of this regulation.  The Soldier will be further advised of the following rights: 
 
      (1) To consult with consulting counsel within a reasonable time.  Soldiers may also consult with civilian counsel retained at their own expense. 

(2) To submit statements, in his or her own behalf. 

      (3) To obtain copies of documents that will be sent to the separation authority supporting the proposed separation.  

      (4) To a hearing before an administrative separation board under section III if he or she had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation.  

       (5) 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.

      (6) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge characterization, from under honorable conditions (general) to honorable, was carefully considered; however, there is an insufficient evidentiary basis to support his request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  Based on his record of misconduct; specifically, his court-martial conviction,   3 periods of AWOL, 10 dishonored checks, and 6 negative counseling statements, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  Additionally, since his administrative separation was accomplished in compliance with applicable regulations, he is not entitled to active service credit for time not served.  

4.  His post-service success as both a citizen and as a civilian employee of the Army is acknowledged; however, these factors do not lessen the severity of the conduct that resulted in his discharge.

5.  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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110021929



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