IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110014303 


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 to honorable.

2.  The applicant states he served first in the National Guard before going on active duty.  Any offenses were either minor in nature or blown out of proportion and he was unjustly discharged.  He feels he was a good Soldier and has waited long enough to ask for an upgrade.

3.  The applicant provides no supporting 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.  The applicant enlisted in the Army National Guard on 8 May 1987, attained the rank of specialist (E-4) and was honorably discharged to enlist in the Regular Army.  He enlisted in the Regular Army on 23 October 1990 in pay grade E-1.

3.  The applicant received negative counseling statements on:

	a.  14 June 1991, for disrespect toward a noncommissioned officer (NCO), insubordination, and making racist remarks;

	b.  19 September 1991, for loss of his ration card; and

	c.  4 December 1991, for being in a public place in his working uniform in violation of station policy and associating with persons perceived to be "skin heads" (Neo Nazis) in violation of Army standards.  (In his rebuttal to this counseling, the applicant stated he was unaware that he was not to wear his uniform off base after 1800 hours and that the people he was with were not "skin heads" but just some American and Portuguese civilians he knew.) 

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

	a.  21 June 1991, for absence from his appointed place of duty; and

	b.  7 October 1991, for violating a lawful general regulation by operating a private vehicle without a proper license.

5.  On 27 January 1992, the applicant's command initiated discharge proceedings against the applicant under Army Regulation 635-200, paragraph 14-12(b) for a pattern of misconduct.

6.  The applicant, after consulting with counsel, acknowledged the separation action and submitted a statement on his own behalf outlining his service to the Army during his tour in Germany by serving as a driver for the medical corpsman even though he was an infantryman.  He was proud of the first aid and casualty care he had learned and his efforts for the welfare of his fellow Soldiers.  He also expressed his grief of at the death of his best friend.

7.  On 31 January 1992, the discharge authority approved the discharge and directed the applicant receive a general discharge.

8.  The applicant was discharged under honorable conditions (general) for a pattern of misconduct on 24 February 1992.  He had 1 year, 4 months, and 2 days of creditable service.  There is no evidence that applicant was considered for or awarded any personal decoration.

9.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  It provides the following:

	a.  an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty;

	b.  a general discharge is a separation under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; and

	c.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant had a series of minor infractions as noted by his receipt of several negative counseling statements, with two more serious infractions as noted by his receipt of two NJP's. 

2.  The infractions were spread out over approximately 6 months and although the applicant did not repeat his mistakes he continued to make new ones.

3.  Normally a discharge under chapter 14 warrants an under other than honorable conditions separation.  While the applicant's infractions were not so egregious as to, in his command's opinion, warrant the harsher discharge, his service was also not so meritorious as to outweigh the offenses that led to his separation with a general discharge.  Further, the mere passage of time by itself does not warrant 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)                                         AR20110014303





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ABCMR Record of Proceedings (cont)                                         AR20110014303



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