BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110023619 


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 a length of service retirement, with all benefits for one who served the Army with honor, and a personal appearance before the Board.

2.  The applicant states he believes his discharge was unjust.  He placed the orders of his country above family and self.  In effect, the evidence is in his records.

3.  The applicant provides no additional evidence. 

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 4 September 1980.  He completed training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He served in:

* Germany - from 29 June 1982 to 22 September 1984, 19 March 1986 to 18 March 1989, and 5 June 1989 to 17 September 1991
* Korea - from 14 May 1996 to 13 June 1997

3.  He continued to serve on active duty through several reenlistments.  He was promoted to the rank of sergeant first class, pay grade E-7, on 1 January 1996.

4.  On 19 November 1997, he received counseling for:

* being absent without leave (AWOL) from 1 to 20 November 1997
* refusal of future leave/temporary duty requests
* uniform standards

5.  He accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 24 March 1998 - for absenting himself from his unit from 16 to 17 February 1998
* 20 October 1998 - for absenting himself from his unit from 25 to 28 May 1998

6.  On 13 November 1998, he was psychiatrically cleared for any action deemed appropriate by the command.

7.  On 16 December 1998, the applicant’s company commander advised the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Separations), paragraph 14-12b, for misconduct - pattern of misconduct, with a general discharge.  The company commanders stated the reasons for the proposed action were: 

* being AWOL on several occasions
* disobeying lawful orders
* domestic violence arrests
* failure to report to appointed placed of duty on several occasions

8.  On 6 January 1999, after consulting with counsel, the applicant acknowledged receipt of the company commander's notification.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He requested his case be heard by an administrative separation board and elected not to submit a statement in his own behalf.

9.  On 6 January 1999, the applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct, with a general discharge.  The applicant's battalion and brigade commanders concurred with the recommendation.

10.  On 24 February 1999, an administrative separation board convened to determine if the applicant should be separated from active duty.  The board found the applicant's misconduct was supported by the evidence.  The board determined the applicant should be separated from active service with a characterization of service of under other than honorable conditions (UOTHC).

11.  On 4 March 1999, subsequent to a legal review for sufficiency, the appropriate separation authority recommended the findings and recommendation of the board for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct, be approved.  He recommended the applicant's service be characterized as UOTHC.

12.  On 31 August 1999, the convening authority approved the applicant's discharge for a pattern of misconduct with a characterization of service of UOTHC.

13.  Accordingly, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct, with a characterization of service of UOTHC.  He was credited with completing 19 years and 24 days of net active service and time lost on 12 November 1997 and 16 February 1998.

14.  On 23 April 2011, the Army Discharge Review Board (ADRB) determined the characterization of his discharge was too harsh and granted relief in the form of an upgrade of the characterization of service to fully honorable and restoration to pay grade E-7.  The ADRB denied a change to the reason for discharge and reenlistment eligibility code.

15.  He was reissued a DD Form 214 changing his character of service to honorable and Item 4a (Grade Rate or Rank) to E-7.

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

	a.  Chapter 12 (Retirement for Length of Service) states Soldier of the RA must be on active duty when they retire.  A soldier of the Regular Army who has completed 20 (Title 10, U.S. Code, section 3914), but less than 30, years of active Federal service may be retired at his/her request.  The soldier must have completed all required service obligations at the time of retirement.

   b.  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 UOTHC 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.

17.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states the Director, ABCMR, will manage the ABCMR day-to-day operations.  The ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  The evidence of record shows his military service was interrupted on 29 September 1999 after having been determined he should be discharged for a pattern of misconduct.  He was credited with completing 19 years and 24 days of net active service.  His service was characterized as UOTHC.

2.  On 23 April 2011, the ADRB determined characterization of his discharge was too harsh and upgraded his discharged to honorable and restored his pay grade E-7.  The ADRB denied a change to the reason (misconduct) for discharge and reenlistment eligibility code.

3.  There is no evidence of record and he has submitted none to show that he was improperly discharged and thus was unable to complete 20 years Active Federal Service (AFS).  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.

4.  The law is clear, the evidence of record shows he completed 19 years and 24 days of AFS; therefore, he did not meet the criteria for retirement. 

5.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20110023619



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ABCMR Record of Proceedings (cont)                                         AR20110023619



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