BOARD DATE: 3 July 2012
DOCKET NUMBER: AR20110024392
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 that his general discharge be upgraded to an honorable discharge.
2. He states he needs an upgrade for job clearance and employment opportunities, plus for educational benefits.
3. He 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 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. His military records show he enlisted in the Regular Army on 27 September 1988. He completed training and was awarded the military occupational specialty of 13B (Cannon Crewmember). The highest rank/grade he held was private/E-2.
3. Special Court-Martial Order Number 16 shows on 8 May 1989, contrary to his pleas of not guilty, he was convicted of willfully disobeying a lawful order from a noncommissioned officer and assaulting a noncommissioned officer. He was sentenced to forfeiture of $466.00 pay for a period of 6 months, reduction to the grade of E-1, and to be confined for 6 months.
4. His records show that during his confinement there were incidents of his disobeying lawful orders and altering a sick slip.
5. On 15 September 1989, the applicant's correctional facility commander notified him that he was initiating action to separate him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, due to willfully disobeying a lawful order from a noncommissioned officer and assaulting a noncommissioned officer. He was advised of his rights.
6. On 19 September 1989, he was advised by consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Chapter 14, paragraph 12c, Army Regulation 635-200 and its effects, the rights available to him, and the effect of a waiver of his rights. He chose not to submit a statement on his own behalf. He waived his rights in conjunction with this consultation.
7. On 21 September 1989, the correctional facility commander recommended his separation under the provisions of Chapter 14, paragraph 14c, Army Regulation 635-200. He was recommended for discharge because of his conviction by court-martial for a serious offense (willfully disobeying a lawful order from a noncommissioned officer and assaulting a noncommissioned officer).
8. The separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c and be given a general discharge.
9. On 13 October 1989, he was discharged accordingly. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 7 months and 9 days of active military service.
10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct because of commission of a serious military or civil offense, if the specific circumstances of the offense warranted separation and a punitive discharge was authorized for the same or a closely related offense under the Manual for Courts-Martial. Commanders could consider Soldiers to have met the criteria of section III, this chapter, and convicted by court-martial, but not sentenced to a punitive discharge, for administrative separation under section III, when the underlying misconduct warranted separation. When appropriate, commanders could initiate separation action while the Soldier was serving a sentence to confinement at the installation detention facility. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.
12. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.
DISCUSSION AND CONCLUSIONS:
1. His records show he was convicted by a special court-martial of willfully disobeying a lawful order from a noncommissioned officer and assaulting a noncommissioned officer.
2. The available evidence confirms his rights were protected throughout the discharge process. Based on his commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.
3. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her 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) AR20110024392
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