IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014600 


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 his general under honorable conditions discharge be upgraded to an honorable discharge and that he receive credit for his overseas service in Kuwait.

2.  The applicant states, in effect, that he was young and immature when he committed his offenses.  Now that he has matured, he feels his discharge does not properly represent him.  Additionally, his discharge is hindering his ability to obtain Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214. 

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 was born on 7 April 1982 and he enlisted in the Regular Army on 16 May 2001 at age 19.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of separation.

3.  Evidence shows that on 7 March 2003, the applicant pled guilty and was found guilty at a summary court-martial of four specifications of violating the Uniform Code of Military Justice (UCMJ) by:  

   a.  on 20 November 2002, for failing to go to his appointed place of duty;

   b.  on 12 December 2002, for stealing personal checks; 

   c.  on 19 December 2002, for making a false statement; and  

	d.  on 19 February 2003, for wrongfully using marijuana.

4.  On 7 March 2003, the following sentence was adjudged:  to be confined for   30 days.  The sentence was approved on 19 March 2003.

5.  On 19 March 2003, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, chapter 14 for patterns of misconduct.  

6.  On 19 March 2003, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

7.  On 26 March 2003, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed that he be issued a general under honorable conditions discharge.  On 3 April 2003, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct.  He completed a total of 1 year,         10 months, and 18 days of creditable active military service.

8.  Section D (Overseas Service) of the applicant’s Enlisted Record Brief is void of any entry with regard to overseas service to include service in Kuwait.  Additionally, the applicant did not provide nor do his records contain any evidence which shows he performed service in Kuwait.

9.  The applicant applied to the Army Discharge Review Board for upgrade of his discharge.  On 13 April 2011, he was notified he was properly and equitably discharged and his request to change the character of his discharge was denied.

10.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

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.

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYMMDD)" in block 18 of the DD Form 214.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded and that he receive credit for overseas service in Kuwait was carefully considered and determined to be without merit.

2.  His record shows he was over 19 years of age at the time of enlistment and over 20 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The applicant did not provide nor do his records contain any evidence which shows he performed service in Kuwait.  Therefore, he is not entitled to correction of his record to show this service.

4.  The record shows he pled guilty and was found guilty at a summary court-martial of four specifications of violating the UCMJ.  

5.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

7.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.

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)                                         AR20110014600



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ABCMR Record of Proceedings (cont)                                         AR20110014600



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