IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20110022802 

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 (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states his discharge was unjust because he did not commit an offense that supported a GD.  

3.  The applicant provides no documentary evidence in support of his application.  

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 record shows he enlisted in the Regular Army on 17 June 1981 and he was trained in and awarded military occupational specialty 62J (General Construction Equipment Operator).

3.  The record confirms the applicant was advanced to the rank of specialist four/E-4 on 1 November 1983 and this is the highest rank/grade he attained while serving on active duty.  His record documents no valor or significant achievement.

4.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (twice) for failing to go to his appointed place of duty at the time prescribed on 1 October 1987 and 4 March 1988.  His record also reveals an extensive record of formal counseling by members of his chain of command for a myriad of disciplinary infractions including being late to formations, poor duty performance, missing physical training, leaving scheduled appointments, indebtedness, writing bad checks, and assaulting his wife.  

5.  On 10 March 1988, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct (acts or patterns of misconduct) with an under other than honorable conditions (UOTHC) discharge.  The unit commander cited the applicant's disciplinary history included his record of NJP and record of counseling for disciplinary infractions as the basis for separation.  

6. On 18 March 1988, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  Subsequent to this counseling the applicant submitted a conditional waiver for a GD in which he voluntarily waived consideration of his case by an administrative separation board contingent on receiving a GD.  

7.  On 28 March 1988, the separation authority approved the applicant's separation action for misconduct under the provisions of Army Regulation 
635-200, chapter 14, and directed the applicant receive a GD.  On 7 April 1988, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant shows the applicant held the rank of private first class/E-3 on the date of discharge and that he completed a total of 
6 years, 9 months, and 26 days of creditable active military service.  It further shows that during his active duty tenure he earned the Army Service Ribbon, Army Good Conduct Medal, and Overseas Service Ribbon. 
9.  There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his GD should be upgraded because he committed no offense supporting a GD has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The applicant had an extensive history of minor misconduct beginning in 1987.

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The evidence of record confirms the applicant was separated under the terms of his conditional waiver which was contingent on him receiving a GD, which he voluntarily submitted to avoid the harsher UOTHC discharge recommended by his unit commander.  

4.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was recognized by the acceptance of his conditional waiver for a GD by the separation authority.  However, it is equally clear his record of misconduct diminished his overall record of service below that meriting a fully HD.  Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20110022802



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ABCMR Record of Proceedings (cont)                                         AR20110022802



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