ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013105


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  A DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states that he served his country twice.  He went in under a different name and social security number for the government, and served from 1990 – 1993.

3.  The applicant enlisted in the Regular Army on 16 June 1987.

4.  The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on:

* 1 May 1989, for disobeying a lawful order, on or about 11 April 1989
* 6 September 1989, for being absent without leave (AWOL) from on or about 
23 July through on or about 22 August 1989

5.  A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 8 September 1989.  He was determined to be fully alert and partially oriented.  His affect and mood were depressed; he had a confused thinking process and abnormal thought content.  He had the mental capacity to understand and participate in proceedings deemed appropriate by his command.

6.  The applicant's immediate commander notified him on 15 September 1989 of his intent to initiate separation against him under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct – commission of a serious offense.  His commander cited the specific reason as his period of time spent in an AWOL status.  

7.  After consulting with counsel on 18 September 1989, the applicant elected not to provide statements in his own behalf.  He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge.

8.  The separation authority approved the recommended discharge on 27 September 1989 and directed that the applicant be issued an under honorable conditions (general) discharge.

8.  The applicant was discharged on 5 October 1989.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - serious offense.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB determined he was properly and equitably discharged and denied his request on 9 April 1997.  

BOARD DISCUSSION:

After reviewing the application and all supporting evidence, as well as the statement from the applicant, the Board found the characterization of general was appropriate for the service and misconduct of the applicant.  The Board determined there was no injustice or clemency warranted in this case.

2. BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.




REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 

	a.  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. 

	b.  Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

ABCMR Record of Proceedings (cont)	 AR20160013105


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