IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120003445 


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, that his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he served honorably in the U.S. Army and made unauthorized long distance phone calls from Korea when his family was distraught due to extenuating circumstances.  He further states that he is currently attending college to receive a Bachelor Degree in Criminal Justice and plans to seek employment with Homeland Security.

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 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 record shows he enlisted in the Regular Army on 15 February 1985 and was trained in and awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).  He was released from active duty on 26 May 1988 in the rank and pay grade of specialist four/E-4.  He was credited with completing 3 years, 3 months, and 12 days of active military service.

3.  After a break in service, he again enlisted on 31 October 1989 in the rank and pay grade of specialist /E-4.  

4.  The record reveals a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

* 10 June 1992, for wrongfully and without authority wearing the insignia  grade of specialist on his uniform
* 24 October 1992, for defrauding and falsely pretending to make unauthorized phone calls, that were official in nature, using government funds

5.  On 3 December 1992, the unit commander notified the applicant that separation action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  The commander cited the applicant's unauthorized use of a government phone as the basis for the action.  He also informed the applicant he intended to recommend issuance of a GD.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected to waive consideration of his case by a board of officers and representation by counsel.  He submitted statements in his own behalf from members of his command.

7.  On 11 January 1993, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, paragraph 14-12c, and directed he receive a GD.  On 27 January 1993, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 shows he held the rank of specialist /E-4 on the date of his discharge and he completed 3 years, 2 months, and 27 days of active military service during the period under review.

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

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions (UOTHC) discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues his GD should be upgraded to an honorable discharge because he served honorably in the U.S. Army and he is currently attending college, majoring in Criminal Justice and plans to seek employment with Homeland Security after graduating.

2.  The evidence confirmed he was discharged for misconduct due to unauthorized use of a government phone.

3.  His separation action was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the length of the applicant's overall record of service was the basis for him receiving a general discharge instead of a UOTHC discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his 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)                                         AR20120003445



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ABCMR Record of Proceedings (cont)                                         AR20120003445



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