IN THE CASE OF:
BOARD DATE: 19 February 2015
DOCKET NUMBER: AR20140010067
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 discharge be upgraded to a fully honorable discharge.
2. The applicant states, in effect, that he was reduced to the pay grade of E-2 because of his misconduct and was subsequently discharged for the same offense, which amounts to being punished twice for the same offense. Accordingly, his discharge should be upgraded to a fully honorable discharge.
3. The applicant provides no additional documents 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 Regular Army on 25 April 1988 for a period of 4 years and training as an M1 Armor Crewman. He completed his one-station unit training at Fort Knox, Kentucky and was transferred to Fort Stewart, Georgia for his first duty assignment. He was advanced to the pay grade of E-4 on 1 September 1989.
3. On 19 July 1990, he was transferred to Korea for assignment to an armor company in the 2nd Infantry Division.
4. On 5 September 1990, he was convicted by a summary court-martial of committing an indecent act and making a false official statement. He was sentenced to a reduction to the pay grade of E-2 and restriction for 45 days.
5. On 9 September 1990, the applicants commander notified him that he was initiating action to discharge him from the service based on his court-martial conviction and the acts that led to his conviction.
6. After consulting with defense counsel, the applicant elected not to submit a statement in his own behalf.
7. The appropriate authority approved the recommendation for discharge on 13 September 1990 and directed that the applicant be furnished a General Discharge Certificate.
8. Accordingly, he was discharged under honorable conditions on 26 September 1990, under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct commission of a serious offense. He had served 2 years, 5 months and 2 days of active service.
9. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. Accordingly, the characterization of his service was appropriate for the circumstances of his case.
2. The applicants contentions have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offense. His service simply does not rise to the level of a fully honorable discharge. Accordingly, there appears to be no basis for upgrading his 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) AR20140010067
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ABCMR Record of Proceedings (cont) AR20140010067
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