BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120012323 


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:

* he wants his last Regular Army discharge changed to honorable
* he has learned his lesson
* the discharge is hindering his employment opportunities
* he has served in the Regular Army and Army National Guard and has since received honorable discharges
* the incident happened over 20 years ago
* he has not been in any trouble with civilian or military personnel since the incident

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 27 February 1981,10 July 1990, and 25 May 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 8 January 1986 for a period of 3 years.  He completed training and was awarded military occupational specialty 54B (chemical operations specialist).  On 15 November 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 16 November 1988 for a period of 3 years.

3.  In March 1989, nonjudicial punishment (NJP) was imposed against him for drunk driving.

4.  On 20 March 1989, he received a memorandum of reprimand for driving while intoxicated.

5.  In April 1989, a bar to reenlistment was imposed against him.

6.  In January 1990, NJP was imposed against him on two occasions for:

* disorderly conduct and disobeying a lawful command
* failing to repair

7.  In January 1990, he was counseled for:

* failing to accomplish/finish assigned extra duty and failing to repair
* failing to perform extra duty and failing to report and perform extra duty (three specifications)
* failing to report (two specifications)

8.  In April 1990, NJP was imposed against him for failing to repair.

9.  On 11 May 1990, he was convicted by a summary court-martial of failing to report to his appointed place of duty, breaking restriction, and failing to obey a lawful order.

10.  On 25 May 1990, he was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  The unit commander cited the applicant's:

* letter of reprimand
* four NJP's
* bar to reenlistment
* summary court-martial

11.  On 1 June 1990, he consulted with counsel, waived his rights, including his right to a board, and acknowledged that he might encounter substantial prejudice in civilian life if a discharge under conditions other than honorable were issued.  He also elected not to submit a statement on his own behalf.

12.  On 18 June 1990, the separation authority approved the recommendation for discharge and directed the issuance of discharge under other than honorable conditions.

13.  Accordingly, he was discharged on 10 July 1990 under other than honorable conditions for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200, paragraph 14-12b.  He completed a total of 4 years, 9 months, and 18 days of creditable active service.

14.  He enlisted in the Alabama Army National Guard on 11 January 2002.  He was ordered to active duty on 15 March 2003 in support of Operation Enduring Freedom.  He was released from active duty on 25 May 2003.  On 8 March 2004, he was honorably discharged from the Alabama Army National Guard for dependency/hardship.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  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.

17.  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.

18.  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 contends it has been over 20 years since his discharge under other than honorable conditions.  However, the passage of time is normally not a basis for upgrading a discharge.

2.  He contends his discharge hinders his employment opportunities.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

3.  He contends he has not been in any trouble with civilian or military personnel since the incident.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  His subsequent honorable service in the Alabama Army National Guard and his active duty service during the period 15 March 2003 to 25 May 2003 are commendable and were carefully considered.  However, his record of service during his period of enlistment from 16 November 1988 to 10 July 1990 included adverse counseling statements, a bar to reenlistment, a letter of reprimand, four NJP's, and one summary court-martial conviction.  As a result, this record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, this record of service is insufficiently meritorious to warrant an honorable or a general discharge.

5.  His administrative separation in 1990 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  The type of discharge directed in 1990 and the reasons therefore were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20120012323



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ABCMR Record of Proceedings (cont)                                         AR20120012323



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