BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20120005153 


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 his general under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he believes he was given an unfair discharge.  He received a court-martial and was found not guilty; however, it was explained that exoneration would send a bad message to other Soldiers.  He unwillingly agreed to a reduction in rank, forfeiture of pay, and a general discharge.

3.  The applicant 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 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.  After having had prior enlisted service, the applicant enlisted in the Regular Army on 19 April 1989 and held the military occupational specialty 88M (Motor Transport Operator).  

3.  His record contains four negative counseling statements ranging in dates from 13 June 1989 to 2 October 1990.  They show he was counseled for:

* Reporting to duty with his hair colored by bleach which resulted in changing his hair orange
* Wearing four rings on his fingers in a military formation
* Failure to pay a speeding ticket which resulted in a court appearance and a fine
* Failure to be recommended for promotion to the grade of sergeant/E-5
* Being absent without leave (AWOL)

4.  His record contains two DA Forms 4187 (Personnel Action) showing he went AWOL from 7 March 1990 to 4 April 1990.

5.  His record contains a charge sheet, dated 5 April 1990, which shows he was charged with one specification of being AWOL from 7 March 1990 to 4 April 1990.

6.  His record contains an undated counseling statement, which shows he requested separation from the Army due to the court-martial charges which were preferred against him.

7.  His record contains a DA Form 4430-R (Department of the Army Report of Result of Trial), which shows he was tried by a summary court-martial on 23 April 1990, and he pled and was found guilty of one specification of being AWOL from 7 March 1990 to 4 April 1990.

8.  On 24 April 1990, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12b, for "misconduct - a pattern of misconduct."  On the same date the applicant acknowledged receipt 




of the commander's intent to separate him for misconduct.  He consulted with 
legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on 
further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He requested a personal appearance 
before a separation board, and indicated he would provide a statement in his own behalf.  However, the statement is not included with the separation packet and he later waived the personal appearance board contingent upon his receipt of no less than a general discharge.

9.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He further acknowledged he understood that as a result of the issuance of a general under honorable conditions discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

10.  On 25 April 1990, the applicant's immediate commander recommended that further counseling and rehabilitation efforts be waived and initiated separation action against him in accordance with chapter 14, Army Regulation 635-200 for misconduct.  On that same day, the intermediate commander recommended approval of the separation action.

11.  On 27 April 1990, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of a General Discharge Certificate.

12.  On 3 May 1990, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a general under honorable conditions discharge by reason of "misconduct- pattern of misconduct."  He completed 1 year, 2 months, and 19 days of creditable active service, and he had 26 days of lost time.  

13.  He submitted a request to the Army Discharge Review Board (ADRB) to have his character of discharge upgraded to honorable.  On 29 September 2000, the ADRB disapproved his request.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Section III (Acts or Patterns of Misconduct), paragraph 14-12b (A pattern of 
misconduct), in effect at the time, establishes policy and prescribes procedures for separating personnel for misconduct.  Soldiers are subject to 
separation per this section for a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order 
and discipline.  Discreditable conduct and conduct prejudicial to good order and 
discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored 
customs and traditions of the Army.  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 Soldier's overall' record. 

15.  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.  His contention that his discharge was unfair because he was found not guilty during his court-martial lacks merit.  The evidence of record shows he pled guilty at his court-martial and was found guilty of being AWOL. 

2.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  And is therefore, he is not entitled to an honorable discharge.  

3.  In view of the foregoing, there is no basis for granting relief in this case.

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)                                         AR20120005153





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005153



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1