IN THE CASE OF:	  

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130017097 


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 general discharge to an honorable discharge.

2.  He states:

* he had just reenlisted and was planning a [career] in the Army
* he went out to celebrate, became intoxicated, and wrecked a truck on post
* he was trying to get back to barracks to get money to get fellow Soldiers out of jail
* he was young and scared 
* the captain gave him a choice, he could get out of the military or face charges for drinking under the influence (DUI)
* he was afraid he was going to Leavenworth (prison) so he chose to get out (of the military) and go home
* his drinking was never a problem until he returned from Operation Desert Storm

3.  He provides no additional documents.  

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 was born on 9 June 1969 and he enlisted in the Regular Army on 15 June 1989 at the age of 20.  He served in Southwest Asia from 30 September 1990 to 18 March 1991 and continued to serve on active duty through reenlistment on 3 February 1993.  

3.  On 7 June 1993, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for assault.

4.  His service record contains a DA Form 3975 (Military Police Report), dated 7 July 1993, which lists the offenses of drunken driving, on post traffic accident, no injuries, fleeing the scene of an accident, and failure to maintain control.  The date of the offenses was 27 June 1993.

5.  On 3 August 1993, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The unit commander stated the applicant received a Troop Grade Article 15 for assault consummated by battery and he received a revocation of his suspended reduction to private first class for fleeing the scene of an accident.  The applicant was advised of his rights.  On the same date, he consulted with legal counsel and did not submit statements in his own behalf.

6.  On an unknown date, the separation authority approved the separation action and directed that the applicant be issued a general discharge.  

7.  On 13 August 1993, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 4 years, 1 month, and 29 days total active military service.  

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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, 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 (UOTHC) discharge 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.  

   b.  Paragraph 3-7a states 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 service record shows he received an Article 15 for assault and a Military Report including offenses of drunken driving, an on post traffic accident, fleeing the scene of an accident, and failure to maintain control.  The offenses occurred 4 months after he reenlisted.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant contends he was young and scared.  Records show the applicant was 23 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.  

5.  The applicant's service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his general discharge to an honorable 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)                                         AR20130017097



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ABCMR Record of Proceedings (cont)                                         AR20130017097



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