IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130003279 


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 under other than honorable conditions discharge be upgraded to a general discharge.  

2.  The applicant states his commander wanted to make an example of someone to show his authority.  He contends his history has been great since he was discharged and he does not want this bad mark on his record.

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.  The applicant enlisted in the Regular Army on 25 July 1985.  He completed training as a fighting vehicle infantryman.
3.  On 22 September 1986, court-martial charges were preferred against him for:

* resisting apprehension, on 16 August 1986
* driving while intoxicated, on 16 August 1986
* being drunk and disorderly, on 16 August 1986

4.  On 29 September 1986, he was found guilty of all charges by a summary court-martial.

5.  On 11 December 1986:

	a.  He was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14-12b, misconduct.

	b.  He acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.

	c.  The applicant's company commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14-12b, due to failure to repair, summary court-martial, resisting apprehension, driving while drunk, and being drunk and disorderly.

6.  On 20 January 1987, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct.  He directed the applicant be given an under other than honorable conditions discharge.

7.  On 30 January 1987, the applicant was discharged accordingly.  He completed 1 years, 6 months, and 6 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b with service characterized as under other than honorable conditions.  He was assigned a separation code of JKM and a narrative reason of separation as pattern of misconduct.

8.  On 1 August 1988, the Army Discharge Review Board reviewed the available and determined that he was properly and equitably discharged.

9.  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, 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.  An under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  

10  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 requests an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant contends that his commander tried to make an example of him; however, the record clearly shows the applicant was found guilty by a summary court-martial of resisting apprehension, being drunk while driving, and being drunk and disorderly.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  His record of misconduct also rendered his service unsatisfactory.  Therefore, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

4.  Based on the foregoing, his request should be denied.  

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)                                         AR20130003279



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ABCMR Record of Proceedings (cont)                                         AR20130003279



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