IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110010013 


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 upgrade of his General Discharge (GD), under honorable conditions, to an Honorable Discharge (HD). 

2.  He states, in effect, he was severely punished before departing Korea and had to repay his enlistment bonus which created a financial hardship.  Now he is in need of an upgrade of his discharge in order to receive his bonus.  The evidence needed to support his request was sent to the Army Discharge Review Board (ADRB) along with his initial request for upgrade. 

3.  He did not submit any additional documentation.  

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 record shows he enlisted in the Regular Army on 25 May 2007.  His enlistment documents show he received an $8000 incentive bonus to serve a 
3-year enlistment in military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  

3.  After completion of training, he served in MOS 92F and the highest rank/grade he attained while on active duty was specialist/E-4.     

4.  The applicant was counseled on several occasions for:

* disrespecting a noncommissioned officer
* failing to go at the prescribed time to his appointed place of duty
* disobeying a lawful order
* breaking restriction

5.  Two nonjudicial punishments (NJP) were administered to him for:

* failing to obey a lawful order
* being disrespectful to a noncommissioned officer

6.  On 17 December 2007, his commander notified him that separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct was being initiated against him that may result in him being given a GD, under honorable conditions. 

7.  The applicant consulted with legal counsel and was advised of his rights and the impact of the separation action.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

8.  He also waived consideration of his case by an administrative separation board.  The applicant submitted a statement appealing the allegations levied against him.  He stated the punishments were imposed as a result of misunderstanding or misconstruing cultural differences and orientation.

9.  On 15 January 2008, the unit commander recommended that he be separated from the service and that further rehabilitative efforts be waived.  The battalion commander reviewed the proposed discharge action and recommended approval of the separation action with a GD, under honorable conditions.
10.  The separation authority approved the action and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, and that he be furnished a GD, under honorable conditions.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 February 2008, under the provisions of Army Regulation 635-200, paragraph 14-12b for patterns of misconduct.  He completed 8 months and 29 days of net active service.  His characterization of service is shown as under honorable conditions (General).  

12.  The applicant’s military personnel record does not show any acts of valor which warrants special recognition. 

13.  The applicant applied to the ADRB to upgrade his discharge.  On 14 May 2010, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12b provides for the separation of a Soldier due to a pattern of misconduct.  A discharge under other than honorable conditions is normally appropriate for a Solder discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

15.  Paragraph 1-16 of Army Regulation 635-200 states when a Soldier's conduct or performance becomes unacceptable, the command will ensure that a responsible official formally notifies the Soldier of his deficiencies.  At least one formal counseling session is required before separation proceedings may be initiated.  The number and frequency of formal counseling sessions are discretionary.

16.  Army Regulation 635-200 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 contends his GD should be upgraded to an Honorable Discharge due to financial hardship and loss of his enlistment bonus.  

2.  The evidence shows the applicant did not complete the required period of service in order to remain eligible for his enlistment bonus.  Through his own negligence, which included several performance counselings and a history of NJP, he was recommended for separation from the Army after only completing 
8 months and 29 days of net active service. 

3.  He has not submitted sufficient evidence or a convincing argument to show that his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for patterns of misconduct or his characterization of service was unjust or that his rights were violated.

4.  The evidence shows that 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 indication of procedural or other errors that would tend to jeopardize his rights.

5.  The ABCMR does not correct records solely for the purpose of making one eligible to complete their military service obligation for receipt of an enlistment bonus.  

6.  Based on the foregoing, he is not entitled to 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 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)                                         AR20110010013





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ABCMR Record of Proceedings (cont)                                         AR20110010013



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