BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140002852 


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 under honorable conditions to honorable.

2.  The applicant states:

	a.  The finding from his chapter 14 board proceedings gave him a 6-month suspended discharge.  He was not afforded the opportunity to serve that time.  Instead, his commanding general reversed the board's decision to retain him.  He requested to meet with the commanding general to find out why, but he was not able to meet with him.  However, he spoke with the commanding general on the telephone and for some reason the commanding general was hell bent on discharging him right away.  His unit commander wanted to get him out of the Army.

	b.  This was over 30 years ago.

	c.  During the course of a Soldier's career he/she will make some decisions that can't be redone.  A rank or position does not make you an exception.  Sometimes a Soldier's chain of command is the example.

	d.  In September 1991, he received an Article 15 for his conduct and he was reduced from pay grade E-6 to pay grade E-5.  He appealed the Article 15 and his reduction was suspended for 180 days.  The brigade commander felt the punishment was too harsh.  His unit commander was not happy.  He completed the 6 months and he held his rank.  The point is people can change no matter what the method.

	e.  In May 1992, his chapter 14 board was held.  The board recommended suspension of his discharge for 6 months.  He was told to keep his nose clean and only his commanding general could reverse the board’s finding.  A few days later, he found out the commanding general had done so.  He had no opportunity for an appeal.  He was discharged.  His unit commander had finally flattened the wheels of justice for him.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* service personnel records

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 4 June 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialty 37F (psychological operations specialist).  On 12 February 1984, he was honorably discharged for immediate reenlistment.  He reenlisted on 13 February 1984 for a period of 6 years.

3.  He was arrested for driving while intoxicated (DWI) on 24 December 1987.

4.  He was promoted to the rank of staff sergeant on 11 May 1988.

5.  On 17 August 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 18 August 1989 for a period of 6 years.

6.  He was again arrested for DWI in November 1990.
7.  In September 1991, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order not to operate a motor vehicle on the installation.  His punishment consisted of a reduction to the rank of sergeant/E-5.  The punishment was suspended for 180 days.

8.  On 23 December 1991, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct-commission of a serious offense.  His unit commander cited two DWI convictions, eight bad checks totaling $972.30 in a 12-month period, and speeding in a residential area with a revoked license as the basis for the recommendation.

9.  On 30 December 1991, he consulted with counsel and he was advised of the impact of the discharge action.  He requested consideration of his case by an administrative board.

10.  On 6 May 1992, a board of officers convened.  The board found that the applicant did commit serious offenses (two DWI's and eight worthless checks) and recommended:

* his separation from active duty with a general discharge under honorable conditions
* suspension of his discharge for 6 months in accordance with Army Regulation 635-200, paragraph 1-20

11.  On 28 May 1992, the approval authority directed the applicant's separation from active duty and receipt of a general discharge.

12.  On 26 June 1992, he was discharged under honorable conditions (general) for misconduct-commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed a total of 12 years and 23 days of creditable active service.

13.  There is no indication in the available records that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  Paragraph 1-20 (Suspension of Execution of Approved Separation) states a highly-deserving Soldier may be given a probation period to show successful rehabilitation before the Soldier's enlistment or obligated service expires.  The separation authority or higher authority may suspend (except fraudulent entry or homosexual conduct) execution of an approved separation for a period of full–time military duty not to exceed 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the administrative board gave him a 6-month suspended discharge, but he was not afforded the opportunity to serve that time.  Records show the administrative board recommended suspension of his general discharge for 6 months, but this was just a recommendation to the approval authority.

2.  His record of service during his last enlistment included one NJP for disobeying a lawful order and a second DWI.  He held the rank of staff sergeant.  As a result, his record of service was not so meritorious as to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, the fact that he was given a general discharge under honorable conditions was generous.

5.  In view of the foregoing, there is no basis for granting the applicant 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 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)                                         AR20140002852



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ABCMR Record of Proceedings (cont)                                         AR20140002852



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