IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110005719 


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 discharge and a change to the narrative reason for separation.

2.  The applicant states there was no injustice in the discharge he received.  He was a young alcoholic who was out of control that took him through years of pain and misery, but with God's grace and mercy he has been sober for the past 11 years.  He states he has been gainfully employed for the past 10 years and recently received a Bachelor of Science degree in criminal justice.  He is requesting an upgrade because he would like his discharge to reflect who he is now as opposed to when he was in the military.  He believes his discharge has an adverse impact on his career and is hurting his chances of helping others.  In retrospect, he regrets what happened in his military life and wishes he could do it over again.  However, he hopes to serve his country in other capacities.

3.  The applicant provides a University of Phoenix transcript.

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 22 April 1985.  He completed training and was awarded the military occupational specialty of laundry and bath specialist.  The highest rank/grade he held was private/E-2.

3.  His records contain numerous DA Forms 4856 (General Counseling Form) indicating he received negative general counseling for infractions to include failing to obey a lawful order, failing to report to his appointed place of duty, drinking alcohol during duty hours, sleeping on duty, being involved in a fight, failing to comply with unit billet standing operating procedures, refusing to follow instructions, and being disrespectful to a superior noncommissioned officer (NCO).

4.  He accepted nonjudicial punishment (NJP) on two occasions during the period 25 April to 18 September 1986 for being disrespectful in language toward his superior NCO and for willfully disobeying a lawful order.

5.  On 12 January 1987, the applicant's commander notified him of his intent to initiate action to separate him under the provisions of paragraph 14-12b of Army Regulation 635-200 (Personnel Separations).  His commander stated the reason for the proposed action was the applicant's pattern of misconduct.  This was based on his being counseled several times for being late for formations, sleeping on duty, and being disrespectful to his NCO's.

6.  On 13 January 1987, he was advised by consulting counsel of the basis for the contemplated separation action for misconduct under the provisions of chapter 14, Army Regulation 635-200, and its effects and of the rights available to him and the effect of any action taken by him in waiving his rights.  He also acknowledged he understood he might expect to encounter substantial prejudice in civilian life if he received a general discharge.  He waived his rights.  He submitted a statement in his own behalf indicating he disagreed with being discharged from the Army.  He stated he was an average Soldier and he wasn't recognized for the good things he did, only for his mistakes.  He added that his military occupational specialty was being phased out and there wasn't a real purpose in garrison to keep him occupied, so he kept busy by drinking and getting in trouble.

7.  On 3 February 1987, the separation authority approved his separation under the provisions of Army Regulation 635-200, chapter 14, and directed issuance of a general discharge.

8.  On 19 February 1987, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him shows he completed a total of 1 year, 9 months, and 28 days of active military service.  Item 28 (Narrative Reason for Separation) shows he was separated for misconduct – pattern of misconduct.

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 considered 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.

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.  His records show he received negative general counseling for infractions, to include failing to obey a lawful order, failing to report to his appointed place of duty, drinking alcohol during duty hours, sleeping on duty, being involved in a fight, failing to comply with unit billet standing operating procedures, refusing to follow instructions, and being disrespectful to a superior NCO.

2.  He accepted NJP twice for being disrespectful in language toward his superior NCO and for willfully disobeying a lawful order.  Such conduct would certainly warrant an administrative discharge.

3.  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.  The evidence of record indicates all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It appears the separation authority directed a general discharge instead of a discharge under other than honorable conditions based on the applicant's overall record.

4.  The applicant's post-service conduct – being sober, acquiring his degree – and his desire to help in the community are noteworthy.  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 the misconduct that he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  There is no evidence that his narrative reason for separation is in error.  As such, there is no basis for changing it.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of improving an applicant's employment prospects or making an individual eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

7.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20110005918



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ABCMR Record of Proceedings (cont)                                         AR20110005719



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