IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110002651 


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 honorable.

2.  The applicant states he has been a good member of his community since his discharge and an honorable discharge would reflect the kind of person he has become.

3.  The applicant provides no additional evidence in support of 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.  His military records show he enlisted in the Regular Army on 29 May 1991.  He completed initial entry training and was awarded the military occupational specialty of petroleum supply specialist.  The highest rank/grade he attained was private first class/E-3.

3.  His records contain numerous DA Forms 4856 (General Counseling Form) indicating he received negative general counseling for infractions, to include not maintaining his personal weapon in his possession, failing to report to his appointed place of duty, leaving personal valuables unsecure, being out of proper uniform on more than one occasion, speeding while in the field, leaving his weapon unsecure, failing to comply with unit standing operating procedures, refusing to follow instructions, failing to pass a diagnostic Army Physical Fitness Test, failing to report back to work on time, being absent from his place of duty, and being disrespectful to a superior noncommissioned officer.

4.  He was given a psychiatric evaluation in May 1993.  The evaluation noted no significant psychiatric disease/disorder and that he met medical retention standards.

5.  On 14 June 1993, the applicant's commander advised him that he was initiating action to separate him under the provisions of paragraphs 14-12b and c of Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  His commander stated the reason for the proposed action was the applicant's pattern of misconduct.

6.  On 16 June 1993, he was advised by consulting counsel of the basis for the contemplated action for separation for misconduct under the provisions of chapter 14, Army Regulation 635-200, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant waived his rights.

7.  The appropriate authority approved his separation under the provisions of Army Regulation 635-200, chapter 14 and directed a general discharge.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions on 1 July 1993 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He completed 2 years, 1 month, and 3 days of active military service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 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.  A discharge under other than honorable conditions 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 received negative general counseling numerous times for infractions such as not maintaining his personal weapon in his possession, failing to report to his appointed place of duty, leaving personal valuables unsecure, being out of proper uniform on more than one occasion, speeding while in the field, leaving his weapon unsecure, failing to comply with unit standing operating procedures, refusing to follow instructions, failing to pass a diagnostic Army Physical Fitness Test, failing to report back to work on time, being absent from his place of duty, and being disrespectful to a superior noncommissioned officer.

2.  Based on the applicant's record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  He contends he has been a good member of his community since his discharge.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate his misconduct during his period of active service; therefore, he has not established a basis to justify 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 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)                                         AR20110002651



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ABCMR Record of Proceedings (cont)                                         AR20110002651



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