Search Decisions

Decision Text

ARMY | BCMR | CY2011 | 20110022088
Original file (20110022088.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20110022088 


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 an upgrade of his general discharge to honorable.

2.  The applicant states:

* he was having marital problems which caused him to be absent without leave (AWOL)
* his discharge is unjust compared to his record of service

3.  The applicant 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 8 March 1989 for a period of 4 years.  He completed training and was awarded military occupational specialty 91A (medical specialist).  He served in Southwest Asia from 12 October 1990 to 20 April 1991 and from 4 January 1993 to 4 March 1993.  He attained the rank of specialist.

3.  On 1 August 1994, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL (two specifications) from 12 May 1994 to 31 May 1994 and from 13 June 1994 to 8 July 1984.

4.  On 1 September 1994, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
14-12c, for misconduct (commission of serious offense).  The unit commander cited his two AWOL periods.

5.  On 9 September 1994, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement on his own behalf; however, his statement is not available.

6.  On 21 September 1994, the separation authority approved the recommendation for discharge and directed the applicant's discharge under honorable conditions (a general discharge).

7.  He was discharged under honorable conditions on 17 October 1994 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He completed a total of 5 years, 5 months, and 26 days of creditable active service with 46 days of lost time.

8.  There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

10.  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 he was AWOL due to marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.

2.  He contends his discharge is unjust compared to his record of service.  However, the governing regulation states an individual separated by reason of misconduct would normally be furnished a discharge under other than honorable conditions; he received a general discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  His record of service included one NJP for two AWOL periods and 46 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant 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 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)                                         AR20110022088



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022088



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2009 | 20090009577

    Original file (20090009577.txt) Auto-classification: Denied

    The applicant requests that his general discharge be upgraded to honorable. He indicates that he was a very good Soldier throughout his military career; however, after experiencing personal/marital problems he had a hard time dealing with the military life style and he requested to leave the military. _______ _ _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.

  • ARMY | BCMR | CY2012 | 20120018198

    Original file (20120018198.txt) Auto-classification: Denied

    On 29 August 1995, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct (commission of a serious offense). On 20 September 1995, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense) with a general discharge. There is no evidence in the available record that shows the applicant applied to the Army Discharge...

  • ARMY | DRB | CY2012 | AR20120020860

    Original file (AR20120020860.txt) Auto-classification: Denied

    Applicant Name: ????? On 28 September 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst determined that the characterization of service is...

  • ARMY | BCMR | CY2010 | 20100013293

    Original file (20100013293.txt) Auto-classification: Denied

    He further acknowledged he could apply to the Army Discharge Review Board or this Board for an upgrade of his discharge and that he would be ineligible to enlist in the U.S. Army for a 2-year period after his separation. There is no evidence to show the applicant applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade. e. Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be...

  • ARMY | BCMR | CY2011 | 20110013702

    Original file (20110013702.txt) Auto-classification: Denied

    However, his records do show that an administrative separation board was conducted and the findings and recommendations were approved by the appropriate authority on 15 August 1994 who directed that the applicant be reduced to the pay grade of E-1 and discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12C(1), due to misconduct. The applicant was granted a personal appearance before the ADRB in Washington, D.C. on 6 January 2003 and...

  • ARMY | DRB | CY2010 | AR20100019041

    Original file (AR20100019041.txt) Auto-classification: Denied

    Applicant Name: ????? c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: No Change RE Code: Grade Restoration: No Yes Grade: No...

  • ARMY | BCMR | CY2010 | 20100021411

    Original file (20100021411.txt) Auto-classification: Denied

    The DD Form 214 he was issued for this period of service confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - abuse of illegal drugs in the rank/grade of specialist four/E-4 with a general under honorable conditions characterization of service. 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. Although during some of his active...

  • ARMY | BCMR | CY2012 | 20120003204

    Original file (20120003204.txt) Auto-classification: Denied

    After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights to appear before an administrative separation board in return for a characterization of service of at least under honorable conditions (general discharge). Accordingly, he was discharged under honorable conditions on 3 August 1994 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct. There is no evidence in the available records to...

  • ARMY | BCMR | CY2001 | 2001063743C070421

    Original file (2001063743C070421.rtf) Auto-classification: Denied

    On 14 January 1994 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, for being AWOL for 28 days. On 19 January 1994 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged. However, that board again, in an unanimous opinion, denied the applicant’s request to change his discharge (Tab D), stating that the...

  • ARMY | BCMR | CY2013 | 20130003886

    Original file (20130003886.txt) Auto-classification: Denied

    The applicant requests an upgrade of his general discharge to an honorable discharge. When SSG Txxxxx went to the commanding officer the next day to change the leave, Captain (CPT) O'xxxx stated it wasn't acceptable to him. The evidence of record shows the applicant was twice counseled and punished under Article 15 for a DUI and for being AWOL.