IN THE CASE OF:	   

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006618 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that during his military service his ex-wife frequently contacted military officials regarding domestic issues, which resulted in the imposition of punishment against him.  He states that his wife was abusing the system with the intent of getting him into trouble and the administrative action taken against him was not an accurate reflection of his duty performance or overall military service.  He adds that he is attempting to improve his current situation by pursuing educational benefits.

3.  The applicant indicated that he was submitting a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and divorce decree; however, no additional documentary evidence was provided with his application.

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 U.S. Army Reserve (USAR) Delayed Entry Program on 22 March 1985 for a period of 8 years.  He enlisted in the Regular Army (RA) on 26 November 1985 for a period of 3 years.  He was awarded military occupational specialty 31M (Mechanical Communications Equipment Operator) and promoted to specialist four (SP4)/pay grade E-4 on 1 March 1987.

3.  The applicant reenlisted in the RA on 31 March 1988 for a period of 4 years.  
He was assigned overseas to Belgium on 29 January 1989.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he was:

* reduced to private first class (PFC) (E-3) on 29 August 1989
* promoted to SP4 (E-4) on 1 April 1990
* reduced to PFC (E-3) on 4 December 1990
* reduced to private (E-2) on 17 December 1990

5.  On 14 February 1991, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12b, based on a pattern of misconduct.

   a.  The applicant was advised of the reasons for the commander's proposed action.  He was advised by consulting counsel of his rights and the separation procedures involved.

   b.  The immediate and intermediate commanders recommended approval of the applicant's separation with a general, under honorable conditions discharge.

6.  On 19 August 1991, the separation authority approved the commander's recommendation for discharge of the applicant and directed that the applicant be discharged for misconduct based on a pattern of misconduct and his service be characterized as under honorable conditions.

7.  A review of the applicant's military personnel records failed to reveal a
DD Form 214 showing he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b.  This review also failed to reveal a DD Form 458 (Charge Sheet) or a complete copy of the applicant's request for 
discharge under the provisions of Army Regulation 635-200, chapter 10 (Discharge for the Good of the Service).  However, this review revealed the following:

   a.  On 3 December 1991, the Commanding General, 21st Theater Army Area Command (TAACOM), withdrew the charges and specifications against the applicant (without prejudice to the Government) that were referred to trial on 
7 November 1991 and approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and that he be issued an under other than honorable conditions discharge.

   b.  On 10 December 1991, the applicant was reassigned to the U.S. Army Transition Point, Fort Dix, NJ, for transition processing.

8.  The applicant's DD Form 214 shows he entered active duty on 26 November 1985 and he was discharged under other than honorable conditions on 
11 December 1991 under the provisions of Army Regulation 635-200, 
chapter 10, for the good of the service - in lieu of trial by court-martial.

   a.  He completed 6 years and 16 days of net active service this period.

   b.  Item 18 (Remarks) shows, in pertinent part, "Immediate Reenlistments This Period:  861126-880330."  (It does not show the period of his continuous honorable active service).

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated, in part, to enter in item 18 a list of enlistment periods for which a DD Form 214 was not issued.  Example:  Immediate reenlistments this period:  761210-791001; 791001-821001.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

  	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 
	b.  Chapter 3, 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.  Chapter 3, 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.

12.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was separated due to his ex-wife abusing the system with the intent of getting him into trouble and, as a result, he was discharged with a character of service that does not accurately reflect his overall military service.

2.  The evidence of record shows the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.  However, shortly thereafter, the Commanding General, TAACOM, withdrew court-martial charges and specifications against the applicant that were referred to trial on 7 November 1991 and approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He also directed the applicant be issued an under other than honorable conditions discharge.

3.  Item 18 of his DD Form 214 shows he had one reenlistment during the period covered by the form.  That shows he had one prior period of honorable service as one cannot reenlist without first being honorably discharged.

4.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, in the absence of evidence to the contrary, the type and character of discharge directed is presumed to have been, and still is, appropriate.

5.  The evidence of record shows that after the applicant reenlisted in the RA, he was assigned overseas to Belgium and subsequently reduced in rank on four separate occasions.  In addition, he was processed for discharge based on a pattern of misconduct and ultimately discharged for the good of the service - in lieu of court-martial.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general 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 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)                                         AR20130006618



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ABCMR Record of Proceedings (cont)                                         AR20130006618



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