IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20120005068 


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 discharge under other than honorable conditions to honorable.

2.  The applicant states his ex-wife was the cause of his discharge from the military.  The applicant further states his ex-wife complained to his company commander and first sergeant, which caused him undue stress.  The applicant states his discharge should be updated so he may obtain his veterans' benefits.

3.  The applicant provides four letters of support.

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 30 November 1988.  He successfully completed training and was awarded military occupational specialty 19D (Cavalry Scout).

3.  On 24 July 1990, the applicant received notification of a dishonored check from the Chief, Installation Check Control, Fort Hood, TX.

4.  In May 1990, the applicant received two letters of reprimand for:

* failure to provide the minimum financial support for his dependents
* spousal abuse

5.  A DA Form 4126-R (Bar to Reenlistment Certificate) approved on 22 May 1991 indicates the applicant was barred from reenlistment for writing a dishonored check and for receiving two letters of reprimand.  He elected not to submit a statement in his behalf.

6.  On 28 June 1991, the applicant received notification of a dishonored check from the Chief, Installation Check Control, Fort Hood, TX.

7.  On 7 August 1991, court-martial charges were preferred against the applicant for unlawfully striking his wife and for wrongfully communicating a threat to his wife.

8.  On 10 December 1991 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he understood he could be discharged under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

9.  On 20 December 1991, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be reduced to the lowest enlisted grade and furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 13 January 1992, the applicant was discharged under other than honorable conditions.  He completed 3 years, 1 month, and 13 days of total active service.

11.  There is no evidence in the available record that shows he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his issues prior to charges being preferred against him.

12.   The applicant provided four letters of support from his grandmother, his pastor, and two associates.  All of the authors state the applicant is hard working and well known throughout the community.  He is a good father and a man of good morale character.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7b, provides that 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 request for an upgrade of his discharge was carefully considered and determined to be without merit.

2.  The applicant contends his ex-wife was the cause of his separation from the military.  However, there is no evidence in his available records that shows his ex-wife was the cause of his indiscipline or that he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his marital issues before or after his indiscipline.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either honorable or general.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits.

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 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)                                         AR20120005068



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ABCMR Record of Proceedings (cont)                                         AR20120005068



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