IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130013447 


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 general, under honorable conditions discharge be upgraded to honorable.  

2.  The applicant states he was going through a bad time because his marriage was going down.  His wife was cheating and had a baby from another man so he started drinking.  He no longer drinks and he has been sober for over 20 years.  

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.  After serving in the Army National Guard, the applicant enlisted in the Regular Army on 28 August 1989.  

3.  He was counseled on 17 April 1990 for disobeying an order to report to work at the time prescribed and on 14 May 1990 for failure to report to work and for missing movement.

4.  He accepted nonjudicial (NJP) punishment on 8 June 1990 for the following offenses:

* unlawfully striking another Soldier by shoving and knocking him to the ground
* two specifications of disobeying a lawful order from his superior commissioned officer
* communicating a threat to his superior noncommissioned officer (NCO)
* failing to go at the time prescribed to his appointed place of duty
* drunk on duty

5.  On 1 August 1990, he was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12b because of a definite pattern of misconduct.  The commander cited as the specific reasons for the proposed separation action the applicant's misconduct that led to NJP on 8 June 1990 and the fact that he had been counseled on numerous occasions as to the importance of reporting to work on time and his attitude toward his superiors.  He was also advised that he could receive an under other than honorable conditions discharge.  He was further advised of his right to:

* consult with legal counsel 
* to present his case before an administrative separation board
* submit statements in his own behalf

6.  On 2 August 1990, he consulted with counsel and waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions.  He elected not to submit statements in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.
7.  On 2 August 1990, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 14 and directed the issuance of a General Discharge Certificate.  On 9 August 1990, he was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Misconduct - Pattern of Misconduct."

8.  There is no evidence indicating he applied to the ADRB for an upgrade of his discharge.

9.  There is no evidence in his available military records that shows his misconduct occurred as a result of hardship due to family problems.  

10.  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 a pattern of misconduct.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge has been carefully considered.  

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.  His contentions were noted; however, there is no evidence in his military records, and he provided none, which substantiate his contention.  Additionally, his disciplinary history includes assault upon another Soldier, communicating a threat to his superior NCO, disobeying lawful orders from his superior commissioned officer, and drunk on duty.  This record of indiscipline clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support granting the requested relief.

4.  In view of 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)                                         AR20130013447



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ABCMR Record of Proceedings (cont)                                         AR20130013447



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