IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110014833 


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 discharge under honorable conditions from the Regular Army be upgraded to an honorable discharge.

2.  The applicant states his records are not in error.  The military chose, and he rightly deserved, to offer him a general discharge under honorable conditions.  He was told he should apply for a discharge upgrade after 5 years.  He went through a severe drug addiction in the years after his discharge and felt he did not deserve to apply.  Now he has been clean since 2004 and feels that he is ready to apply.

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.  He enlisted in the Regular Army on 17 March 1992 in pay grade E-3 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 02U (Electric Bass Player).  He was promoted to specialist/pay grade E-4 on 3 December 1992.

3.  He was administratively reduced to private first class/pay grade E-3, effective 5 February 1993.

4.  On 22 February 1993, he was formally counseled  for filling his vehicle with gas and driving off without paying on 18 February 1993.  He made restitution and no charges were filed.  He was warned that continued behavior of this kind could result in initiation of separation action to eliminate him from the Army.  He was counseled on the effects a general discharge and an under other than honorable conditions discharge could have on his benefits and that they could severely prejudice him in civilian life.  He signed the formal counseling sheet, acknowledging he had been counseled.

5.  A memorandum for the record, dated 22 February 1993, from his first sergeant stated the applicant was arrested at the Post Exchange on 7 January 1993 for shoplifting.  He tried to steal a stereo because he had no money and planned to pawn the stereo for money to eat.  

6.  On 24 February 1993, he received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  

7.  On 16 March 1993, he received a bar to reenlistment based on his unsuitable behavior.

8.  On 23 March 1993, his commander notified him that action was being initiated to discharge him for misconduct, commission of a serious offense under the provisions of chapter 14 of Army Regulation 635-200 with a general discharge.  The reason for the proposed action was his arrest for shoplifting on 7 January 1993.  The commander advised the applicant of his rights to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation action
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

9.  On 24 March 1993, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14, Army Regulation 635-200 for commission of a serious offense.  He requested representation by military counsel and he submitted a statements in his own behalf.  He acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

10.  In his statement he requested that he be granted an honorable discharge instead of the recommended general discharge.  He had a very clean record and never committed any offense in his life.  He learned his lesson and took full responsibility for his actions.  An honorable discharge would allow him to hold his head high in the civilian world.  He feels he is being punished enough by being chaptered out of the military.

11.  He also submitted statements from a specialist and two sergeants/pay grade E-5 in support of him receiving an honorable discharge.  These statements attest that he:

* always did his best to support the band's mission
* works hard and never displayed a hostile attitude toward his superiors or peers
* realizes the two incidents were foolish

12.  On 23 March 1993, his commander recommended he be separated prior to the expiration of his term of service and that he be given a general discharge.   His specific reason for recommending discharge was the applicant's arrest for shoplifting.  

13.  The appropriate authority waived the requirement for a rehabilitative transfer and approved the recommendation for discharge under the provisions of 
chapter 14 of Army Regulation 635-200, due to commission of a serious offense with a general discharge under honorable conditions.  

14.  On 6 April 1993, he was discharged by reason of misconduct - commission of a serious offense.  He completed 1 year and 10 days of active service that was characterized as under honorable conditions.
15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 14 dealt with separation for various types of misconduct.  Paragraph 14-12c provided for the separation of a Soldier by reason of commission of a serious offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  He drove away from a gas station without paying for his gas.  Fortunately, he was allowed to make restitution in lieu of charges being filed.   However, this does not mitigate the seriousness of his actions.  He was also arrested for shoplifting.  The final disposition of this charge is not shown in the record.  These incidents clearly show he did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.  

2.  It is clear his previous service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

3.  He was properly and equitably discharged in accordance with regulations in effect at the time.  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 have jeopardized his rights.

4.  In view of the above, there is an insufficient basis to upgrade 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _______   ___
               CHAIRPxERSON
      
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)                                         AR20110014833



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ABCMR Record of Proceedings (cont)                                         AR20110014833



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