IN THE CASE OF:
BOARD DATE: 22 May 2012
DOCKET NUMBER: AR20110022965
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 under honorable conditions to an honorable discharge.
2. The applicant states he served his Nation to the best of his abilities during Operation Desert Storm.
3. The applicant provides a letter from the National Personnel Records Center, dated 4 November 2011.
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 applicants 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 applicants 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 14 February 1989. He completed one-station unit training and was awarded military occupational specialty 95B (Military Police). The highest rank/grade he attained while serving on active duty was specialist/E-4.
3. His records show he received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on the following occasions:
* on 17 June 1991, for stealing four books of a value of $125.00
* on 26 September 1991, for failing to be at his appointed place of duty at the appointed time on two occasions
* on 18 November 1991, for disobeying a lawful order, failing to notify this chain of command of his whereabouts, failing to be at his place of duty, and being disrespectful in language and deportment towards a noncommissioned officer
4. On 4 December 1991, his commander notified him of his intent to initiate separation action against him for unsatisfactory duty performance under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, and informed him of his rights. On the same day, the applicant acknowledged receipt of the notification.
5. On 16 December 1991, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general discharge under honorable conditions, and the rights available to him. He declined to submit statements in his own behalf.
6. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance and directed an honorable discharge.
7. On 28 January 1992, the applicant was discharged in the rank/grade of private/E-2. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for unsatisfactory performance in accordance with chapter 13 of Army Regulation 635-200 with a character of service as under honorable conditions (general). This form further shows he completed 2 years, 11 months, and 15 days of net active service during this period.
8. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 provides for separation due to unsatisfactory performance when, in the commander's judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.
DISCUSSION AND CONCLUSIONS:
The separation authority approved and ordered that he receive an honorable discharge. It appears that a mistake was made at the time his DD Form 214 was prepared and he was inadvertently issued a DD Form 214 with an under honorable conditions character of service. Therefore, he is entitled to have his DD Form 214 corrected to show he was honorably discharged.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding the applicant's current DD Form 214; issuing him a new DD Form 214 showing his character of service as honorable; and issuing him an Honorable Discharge Certificate, dated 28 January 1992.
_________________________
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.
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ABCMR Record of Proceedings (cont) AR20110022965
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