BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120003102 


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 under other than honorable conditions (UOTHC) discharge.

2.  The applicant does not provide any additional statements. 

3.  The applicant provides the rebuttal to his chapter 14 proceedings, dated
16 May 1989, and 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 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 20 November 1986 for a period of 3 years.  Upon completion of initial entry training he was awarded military occupational specialty 19E (Armor Crewman).  

3.  His record of disciplinary action included:

   a.  Nonjudicial punishment under Article 15, Uniform Code of Military Justice on 9 June 1988 for operating a vehicle while drunk and for wrongfully consuming an alcoholic beverage while under age.

   b.  A bar to reenlistment, dated 21 June 1988.  The DA Form 4226-R (Bar to Reenlistment Certificate) indicates he tested positive for tetrahydrocannabinol ((THC), meaning marijuana)) on 5 May 1987.  

   c.  Two letters of reprimand for driving under the influence (DUI) and illegal exposure to THC.

4.  On 10 February 1989, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  The company commander stated he was recommending the applicant for separation because of his total disregard for military rules, regulations, and misconduct.  He was advised of his rights.  

5.  He acknowledged receipt of the separation action, requested consideration of his case by an administrative separation board, requested a personal appearance before the board, consulted with legal counsel, and submitted a statement in his own behalf.  He stated he wanted to remain on active duty and he requested a rehabilitative transfer.  

6.  The applicant's company commander recommended approval with a general discharge and cited the reasons for his recommendation were:

	a.  The applicant had demonstrated a total lack of respect for military rules and regulations.

	b.  The applicant received an Article 15, two letters of reprimand, and a bar to reenlistment.  He was arrested for a second DUI on 7 January 1989 and he was referred to the Alcohol and Drug Abuse Prevention and Control Program for alcohol abuse.  

	c.  The applicant did not demonstrate any motivation or desire to correct his deficiency.  His apathetic attitude and unwillingness to abide by rules and regulations established by this chain of command and the U.S. Army clearly indicated he did not meet retention standards and should be eliminated from the service.  

7.  The intermediate commander recommended approval of the separation action with a general discharge.  

8.  The senior intermediate commander recommended approval of separation action with a UOTHC discharge.

9.  On 21 April 1989, a board of officers met and recommended the applicant be discharged from the service because of misconduct with a UOTHC discharge.

10.  Through his attorney, he submitted a rebuttal to the chapter 14 proceedings requesting the approval authority approve only a general discharge.

11.  The convening authority approved the findings and recommendation of the board, waived reassignment requirements, and directed that the applicant be discharged from the Army under the provisions of paragraph 14-12b, Army Regulation 635-200, for misconduct, with the issuance of a UOTHC discharge.

12.  On 30 May 1989, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct.  He completed 2 years, 6 months, and 11 days creditable active duty service.  

13.  On 24 May 1990, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  

14.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  
   
   b.  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.

   c.  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's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His service record shows he received an Article 15, bar to reenlistment, two letters of reprimand, and he tested positive for marijuana.  

3.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general discharge and appropriately characterized his service as "UOTHC."  

4.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request.  

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)                                         AR20120003102



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ABCMR Record of Proceedings (cont)                                         AR20120003102



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