BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100020260 


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 an honorable discharge.

2.  The applicant states he has been enrolled in school for the last 4 years and can't get his GI Bill benefits.  He states he has seen other Soldiers discharged for worse reasons than he was and they got their discharge status changed.  He states he completed his obligations to get the GI Bill but his discharge status denies him from receiving them.  

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.  The applicant enlisted in the Regular Army on 3 February 1995 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 31R (Multichannel Transmission System Operator).

3.  On 2 February 1998, he accepted nonjudicial punishment (NJP) for 
11 specifications of failure to go at the time prescribed to his appointed place of duty.

4.  On 5 February 1998 , the applicant received a mental status evaluation.  The examiner found the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

5.  On 30 April 1998, the applicant's privilege to operate a privately owned vehicle on the base was suspended for a period of 5 years.  This action was based on his apprehension for driving while his license was revoked/suspended on 16 March 1998.

6.  On 7 May 1998, he accepted NJP for missing movement through neglect.

7.  The applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 14-12b of Army Regulation
635-200 (Personnel Separations) for pattern of misconduct.  The commander further notified the applicant he was recommending that he be issued a general discharge.

8.  The commander advised the applicant of his right to:

* submit statements in his own behalf within 7 duty days
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* to consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge
 
9.  After having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the 



contemplated separation action against him under the provisions of paragraph 14-12b of Army Regulation 635-200 for misconduct.  The applicant acknowledged he:

* understood he could receive an honorable or general discharge
* understood if he received a general discharge he could expect to encounter substantial prejudice in civilian life
* would submit statements in his own behalf and he requested a copy of the documents that would be sent to the separation authority

10.  A memorandum for record stated the applicant failed to submit his statement within the time allowed in his notification of discharge.

11.  The applicant's commander recommended that he be discharged due to a pattern of misconduct with a general discharge.  He stated the applicant accepted NJP on 2 February 1998 and on 7 May 1998.  In addition, he had his driving privileges on base suspended on 16 March 1998.  He also stated that rehabilitation would not produce the quality Soldier needed in today's Army.

12.  On 8 July 1998, the appropriate authority approved the recommendation for discharge due to a pattern of misconduct and directed that the applicant be issued a general discharge.

13.  On 25 August 1998, the applicant was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 due to misconduct with a general discharge.  He had completed 3 years, 6 months, and 23 days of active service.  

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 15 October 2004, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge properly characterized his service.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of Chapter 14.

16.  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 accepted NJP on two occasions for 11 specifications of failure to go to his appointed place of duty and missing movement.  He also had his driving privileges on base suspended for 5 years due to his apprehension for driving while his license was revoked/suspended.  This pattern of misconduct clearly shows he did not meet the standards of acceptable conduct and performance of duty for military personnel.

2.  It is apparent the applicant's commander considered his entire period of service and any other mitigating circumstances concerning his discharge in that he recommended a general discharge instead of an under other than honorable conditions discharge that was normally considered appropriate under the provisions of Chapter 14.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  Each application submitted to the ABCMR is considered on its own merits.  Therefore, decisions concerning the characterization of other Soldier's discharges were not used in making a determination in this case.

5.  The ABCMR does not upgrade discharges solely to make an individual eligible for benefits from another agency.

6.  Therefore, in view of the above, there is insufficient basis to upgrade the applicant's 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)                                         AR20100020260



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ABCMR Record of Proceedings (cont)                                         AR20100020260



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