IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120007707 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states the conditions of his discharge were not fully explained to him; he was under the impression he was exiting the military under the Reduction in Forces that occurred shortly after the closure of Operation Desert Storm.  He attests that he is willing to be reinstated in active duty or another component in order to complete his initial commitment and assure both benefits and a correction in his status as a veteran.  He contends his discharge was based upon two isolated events and attests he was erroneously placed in an absent without leave (AWOL) status and only failed to wear his proper rank on one occasion when he wore his only uniform on which he did not have the rank sewn.  He believes his overall record more accurately reflects a more positive term of enlistment.  He has completed a Master's Degree in Agricultural Education and would be willing to utilize this skill to the benefit of the service as well since he can work with any and all agricultural issues.

3.  The applicant provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter of Appreciation
* Congratulatory memorandum
* Page 1 of a DA Form 638-1 (Recommendation for Award of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal)
* DA Form 31 (Request and Authority for Leave)

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 4 October 1990.  Upon completion of initial entry training, he was awarded military occupational specialty 91A (Medical Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his separation he held the rank/grade of private (PV1)/E-1.

3.  His record contains a self-authored statement, dated 28 August 1991, wherein the applicant stated, in effect, that promoting him from PV1 to PV2 and forcing him to wear the rank was not necessary due to the fact he could work just as well, if not better, at his current rank of PV1 as many sergeants and/or higher ranking personnel.  He contended that the U.S. Army need not pay more money per year if the selfsame person does not want, need, or request it.  He then asked if the Army was "so stupid as to throw away money?"

4.  His military service record reveals a disciplinary history that includes:

	a.  adverse counseling sessions for:

* Failure to wear the proper rank on his uniform on two occasions
* Being AWOL from 7 to 19 September 1991

	b.  acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 to 
13 September 1991.
5.  His record contains three DA Forms 2823 (Sworn Statement) rendered during an interview conducted between the applicant and his company commander on 19 September 1991.  During this interview, the applicant:

	a.  offered no explanation for missing a Preparation for Overseas Replacement on 6 September and an M-16 Rifle qualification range on 7 September.  

	b.  acknowledged knowing his leave had been approved for the period 9 through 14 September.

	c.  admitted to departing his unit on 6 September and being in the states of Florida, Georgia, North Carolina, and Tennessee, during the period 7 to 19 September 1991.

	d.  admitted to not signing out on leave on 9 September 1991, because he had already departed on 6 September.

6.  On 2 October 1991, the applicant underwent a mental status evaluation.  The examiner noted the applicant's behavior was normal, he was fully alert, fully oriented, his mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  As a result, he opined the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, met retention requirements, and cleared him psychiatrically for administrative action deemed appropriate by the command.

7.  On 24 October 1991, a Bar to Reenlistment was approved on the applicant as he was deemed "not recommended for further service" and it was directed that his record be annotated accordingly.

8.  On 19 November 1991, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for patterns of misconduct and minor disciplinary infractions:  AWOL from 7 to 19 September 1991 and failure to wear the proper uniform.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification on the same day.

9.  He consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He elected to waive his rights to consideration by or personal appearance before an administrative separation board (if so entitled), to be represented by counsel, and to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

10.  The unit commander subsequently recommended that the applicant be separated from the service based on the aforementioned offenses.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

11.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14, for misconduct – pattern of misconduct.  He determined his service would be characterized as under honorable conditions and that he would be issued a General Discharge Certificate.

12.  On 9 December 1991, the applicant was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b
* his narrative reason for separation was "Misconduct - Pattern of Misconduct"

13.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

14.  The applicant provides:

	a.  A self-authored statement wherein he reiterates his requests and belief that he was being released under the provisions of the Reduction in Forces following Desert Storm.  He contends he would not have been comfortable with exiting the Army under adverse circumstances since his service up until his release had been positive and productive.  He explains that he worked a 24 hour shift on Thursday, 5 September 1991, so he was allowed to be off duty for the next 12 hours.  Since 6 September 1991 was a Friday, his unit was allowed to leave post when they were not on duty.  Given that he had an approved leave beginning on 9 September 1991, he presumed he could depart on his vacation immediately.  He returned to the area on Sunday, 15 September and it is unclear why his record shows he was AWOL.  As to the "Failure to wear rank" claim, he only failed to wear his proper rank on one occasion when he unwittingly wore his only uniform on which he did not have the rank sewn.  

	b.  A Letter of Appreciation rendered by the Noncommissioned Officer in Charge (NCOIC), Physical Standards Service, Headquarters, Medical Department Activity, Fort Campbell, KY, dated 14 June 1991, thanked the applicant for the superb job he accomplished during his tenure.  The NCOIC stated the applicant had demonstrated professionalism, technical competence, and the qualities to be a team player who could be counted on in any given situation.  The NCOIC also noted the applicant's sacrifice of an extended duty day was made without thought of his personal life.  The applicant's ability to organize and document had immeasurably assisted him in successfully meeting his end of month requirements and he would enjoy working with the applicant in the future.

	c.  A memorandum rendered by the Commander, Headquarters Division Support Command, 101st Airborne Division (Air Assault), Fort Campbell, KY, on 28 August 1991, congratulated the applicant for being selected as Distinguished Honor Graduate of the Air Assault School, Class 55-91.  The commander stated that finishing this course was a significant accomplishment of which the applicant should be proud, and achieving this additional accolade was a true indication of his professionalism and dedication.  The commander encouraged the applicant to carry the knowledge and experience he had gained back to his unit and challenged him to set the example for others to follow.

	d.  Page 1 of a DA Form 638-1, dated 5 September 1991, which indicates he was recommended for award of the Army Achievement Medal in recognition of being selected as the Distinguished Honor Graduate in Air Assault School.  He did not provide page 2 of this document and it is not filed in his record so, there is no way to determine whether the recommendation was approved and recognized on permanent orders.

	e.  A DA Form 31, dated 23 August 1991, which indicates he had an approved ordinary leave of absence for the period 9 to 14 September 1991.  This form does not show that he signed either out on leave or back in from leave.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  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 Soldier's overall record.

16.  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's contention that his record should be corrected by upgrading his discharge to an honorable discharge was carefully considered and found to lack merit.

2.  Evidence clearly shows he refused to properly wear his rank on more than one occasion and that he departed his unit in an AWOL status.  

3.  The applicant's record is void of evidence and he has failed to provide evidence showing he was given any indication that his separation was under the provisions of the Reduction in Forces which took place following Operation Desert Storm.  To the contrary, evidence clearly shows he acknowledged receipt of his commander's notification of initiation of separation action for misconduct and that he was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20120007707





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ABCMR Record of Proceedings (cont)                                         AR20120007707



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