IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110023904 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* He completed over 5 years of excellent service
* He was misled by a superior who was a drug addict
* The Army took his entire pay check for months for child support but would not give him BAQ (Basic Allowance for Quarters) to support his kids 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 9 April 1986 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 31M (multichannel communications systems operator).  On 26 October 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 27 October 1988 for a period of 4 years.  

3.  On 6 December 1990, nonjudicial punishment (NJP) was imposed against the applicant for striking his spouse in the face with his fist.

4.  A bar to reenlistment was imposed against the applicant on 30 January 1991. 

5.  On 15 May 1991, NJP was imposed against the applicant for using cocaine.

6.  On 30 July 1991, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (commission of a serious offense). 

7.  On 30 July 1991, he consulted with counsel and declined consideration of his case by an administrative separation board and he elected not to submit a statement on his own behalf.

8.  On 16 September 1991, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense) and directed the issuance of a discharge under other than honorable conditions.

9.  He was discharged on 24 September 1991.  He completed a total of 5 years, 5 months, and 16 days of creditable active service.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  


12.  Army Regulation 635-200, paragraph 3-7a, states 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.

13.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was misled by his superior.  However, there is no evidence of record and he provided no evidence to support this contention.

2.  His contentions regarding pay cannot be verified by the records some 
25 years after the fact.

3.  He contends he completed 5 years of excellent service.  However, his record of service during his last enlistment included a bar to reenlistment and two NJPs.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced her concerns and he failed to do so.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20110023904





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ABCMR Record of Proceedings (cont)                                         AR20110023904



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