IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001812 


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 (UOTHC).

2.  The applicant states, in effect, that after serving 36 months on active duty the only stain on his outstanding military service was a civilian charge for driving under the influence (DUI) he received on 2 August 1989.  He did not pay his fine and was sentenced to 58 days in civilian jail.  He was also convicted by a summary court-martial for more than 50 days of bad time.  Since his discharge he has not been in any trouble and he has been a model citizen.  He feels his sentence was too harsh.  A general discharge would allow him to qualify for the Veterans Retraining Assistance Program (VRAP) which would provide him education benefits.

3.  The applicant provides 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 enlisted in the Regular Army on 2 April 1987.

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 1 December 1989, shows he was barred from reenlistment.  This document shows he received nonjudicial punishment (NJP) on two occasions as follows:

* on 20 January 1989, for failing to maintain control of a military vehicle
* on 7 April 1989, for being drunk on duty

4.  This same form shows he received 9 negative performance counselings for infractions that included disobeying orders, missing formation, suspension of installation driving privileges, being drunk on duty, and fighting.

5.  His DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) the following entries:

* 7 December 1989 to 16 January 1990, 40 days of civilian confinement
* 9 March, civilian confinement
* 23 March 1990, confined by civil authorities

6.  Item 27 (Remarks) of his DA Form 2-1 shows:

* On 7 December 1989, he was arrested for an outstanding bench warrant in Geary County; he was charged with failure to attend alcohol/drug rehabilitation classes, DUI, speeding, possession of alcohol under legal age, and transportation of open container
* On 9 March 1990, he was taken to civilian confinement on bench warrant with no bond
* 0n 23 March 1990, his parole was revoked by Geary County, hearing scheduled for 5 April 1990

7.  On 1 March 1990, his immediate commander notified him of his intent to initiate separation action against him for commission of a serious offense.  The commander stated that the applicant violated lawful general regulations, was drunk on duty, made false statements under oath, was held in civilian confinement, was charged with DUI, and had several adverse counseling statements. 

8.  On 1 March 1990, he acknowledged receipt of the separation notification action and consulted with counsel.  He requested a hearing before an administrative separation board.

9.  On 23 September 1990, the commanding general directed the appointment of an administrative separation board to determine whether the applicant should be discharged due to commission of a serious offense.

10.  The administrative separation board proceedings, dated 25 May 1990, show the board carefully considered the evidence before it and found there was sufficient evidence supporting a finding that the applicant did commit the serious offenses.  The board recommended his discharge from the military because of misconduct and that he be issued a UOTHC discharge.

11.  On 6 June 1990, the separation authority approved the applicant's discharge and directed he receive a UOTHC discharge.  On 13 June 1990, the applicant was discharged.

12.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct-commission of a serious offense with his service characterized as UOTHC.  He completed 3 years and 12 days of creditable active service.

13.  There is no available evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious 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.

	b.  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.

	c.  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 available evidence does not support the applicant's request to upgrade his discharge.

2.  The applicant's record shows a pattern of misconduct which included numerous adverse counseling statements, two Article 15's, a DUI, and confinement by civil authorities.

3.  The applicant was properly and equitably discharged 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.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of 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)                                         AR20130001812





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ABCMR Record of Proceedings (cont)                                         AR20130001812



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