IN THE CASE OF: 

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130011171 


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 under other than honorable conditions discharge to a general or an honorable discharge.

2.  The applicant states he would like his service to be recognized in the event of his untimely demise.

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 11 February 1987 and he held military occupational specialty 12C (Bridge Crewmember).  He was assigned to the 4th Engineer Battalion, Fort Carson, CO, on 14 July 1989.  
3.  Between 28 September 1989 and 24 June 1991, he was frequently counseled by various members of his chain of command for failing to obey lawful orders, failing to report to his appointed place of duty on numerous occasions, failing to report to extra duty, being drunk on duty, and for being disrespectful toward noncommissioned officers.

4.  On 20 January 1991, his installation driving privileges were suspended for driving while intoxicated (DWI).  

5.  On 25 January 1991, he received a letter of reprimand for DWI, misuse of alcohol, and the unsafe operation of a motor vehicle.

6.  On 5 March 1991, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for DWI. 

7.  On 28 May 1991, a DA Form 4126 (Bar to Reenlistment Certificate) was placed against him.  The bar cited the Article 15 he received for DWI and the frequent counseling he received from his chain of command for misconduct.

8.  On 22 July 1991, he received NJP under the provisions of Article 15, UCMJ, for one specification each failing to report to his appointed place of duty and for being drunk on duty.  

9.  On 6 August 1991, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant's record of misconduct.

10.  On 6 August 1991, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He subsequently waived his right to have his case heard by an administrative separation board with the condition he be given a general discharge.

11.  On 20 October 1991, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from his assigned unit from 4 to 14 September 1991.

12.  On 15 November 1991, the approving authority disapproved his conditional waiver request and he was directed to appear before an administrative separation board.

13.  On 11 December 1991, the separation board convened.  After reviewing records and hearing testimony and/or arguments from the applicant, his counsel, witnesses, and his chain of command, the board found the applicant's records showed a continued pattern of misconduct and evidence indicated the offenses committed were of a serious enough nature to warrant discharge.  The board recommended he be discharged under the provisions of Army Regulation
635-200, paragraph 14-12c, with an under other than honorable conditions discharge.

14.  On 2 January 1992, the separation authority approved the findings and recommendations of the board and directed the applicant be discharged with an under other than honorable conditions discharge.  On 10 January 1992, he was discharged accordingly.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  

16.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

18.  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.



19.  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 evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by NJP he received on three different occasions for driving while intoxicated, failing to report to his appointed place of duty, and being drunk on duty.  Accordingly, his immediate commander initiated separation action against him.  In addition, he received NJP for being AWOL after separation action was initiated by his commander.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a 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 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)                                         AR20130011171



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011171



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1