IN THE CASE OF:
BOARD DATE: 14 June 2012
DOCKET NUMBER: AR20110025027
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, in effect, an upgrade of the under other than honorable conditions discharge for the period ending 5 April 1991.
2. The applicant states he did the best he could but he had a problem dealing with the death of his father and he was under duress.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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. With prior enlisted service in the Regular Army (RA) from 15 April 1980 through 29 January 1981, the applicant entered active service on 17 October 1990 as a member of the Indiana Army National Guard (INARNG).
3. The applicants military records for his ARNG service are neither available in hard copy nor on the interactive Personnel Electronic Records Management System (iPERMS) for review. However, the applicant provided a copy of his
DD Form 214 for this period ending 5 April 1991 which is sufficient to conduct a fair and impartial review of this case.
4. The specific facts and circumstances leading to his discharge are not available for review; however, the applicant's DD Form 214 shows the following:
* a service component of the ARNG
* active duty service from 17 October 1990 through 5 April 1991
* a pen and ink change showing service from 19 October 1990 through 14 May 1991
* no prior active or inactive service
* he was ordered to active duty in support of Operation Desert Shield/
Desert Storm
* service in Southwest Asia from 31 October 1990 through 5 April 1991
* he was discharged with a characterization of service of under other than honorable conditions
* the authority for separation is blacked out
* a narrative reason for separation of misconduct - pattern of misconduct
5. Army Regulation 635-200 (Personnel Separations Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct (emphasis added), 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 under other than honorable conditions 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 Soldiers overall record.
6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that 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.
DISCUSSION AND CONCLUSIONS:
1. The record does not contain and the applicant has not provided any evidence supporting his contention that his misconduct was the result of an inability to deal with the death of his father.
2. In the absence of evidence of such evidence, the presumption of regularity in governmental affairs must be applied. There is nothing in the available records and the applicant has not submitted any evidence to overcome this presumption.
3. In view of the foregoing, there is an insufficient evidentiary 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) AR20110025027
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ABCMR Record of Proceedings (cont) AR20110025027
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