IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110016184 


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 general discharge (GD) to an honorable discharge (HD).

2.  He states his acting platoon sergeant accused him of stealing a pair of jumper cables from his roommate, for which he received a GD.  He states the jumper cables were returned to his roommate with an explanation of the misunderstanding.  He believes his acting platoon sergeant treated him unfairly and used the situation to make an example of him to his fellow Soldiers.  The incident took place just months before his expiration term of service (ETS) date.  He had planned on leaving the military in September 1996 to further his education.  As a result of his carelessness and the acting platoon sergeant's abuse of authority his career was ended.  He would now like to right this wrong, which would allow him the opportunity to reenlist and serve his country as the proud, dedicated, upstanding Soldier he once tried to be.

3.  He provides no documentary evidence in support of his request.

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.  On 15 September 1992, the applicant enlisted in the Regular Army for a period of 4 years.  After completing initial entry training, he was awarded military occupational specialty 94B (Food Service Specialist).

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on two occasions:

	a.  On 16 March 1995, for being derelict in the performance of duty on 4 March 1995 by failing to leave a proper phone number with the charge of quarters while on division ready force (DRF)-9 status.  

	b.  On 9 February 1996, for willfully disobeying a lawful order from a noncommissioned officer on 10 January 1996 and stealing a set of tools valued at less than $100 from another Soldier.  

4.  In an undated memorandum, his commander informed him of his intent to initiate action to separate him for serious misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  His commander stated the reason for the action was the NJP he had received on 16 March 1995 and 9 February 1996.  His commander informed him he was recommending he receive a GD Certificate. 

5.  The applicant acknowledged he had been advised by counsel of the basis for the contemplated action to separate him and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a GD under honorable conditions was issued to him.

6.  On 9 February 1996, he underwent a mental status evaluation.  The examining physician found him psychiatrically cleared for any administrative actions deemed appropriate by his command.

7.  On 6 March 1996, the separation authority approved his discharge and directed he receive a GD Certificate.  On 19 March 1996, he was discharged accordingly.  He completed 3 years, 6 months, and 3 days of net active service.

8.  On 22 November 2002, the Army Discharge Review Board informed him his request for a change in the character of and/or reason for his discharge was denied.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 GD if such is merited by the Soldier’s overall record.  
   
   b.  Paragraph 3-7a provides that an HD 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.

   c.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an HD.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and that his rights were fully protected throughout the separation process.  

2.  He received NJP on two occasions.  The second instance of NJP was for the serious offense of stealing from a fellow Soldier.  The evidence of record does not show nor has the applicant provided documentary evidence showing he was falsely accused of theft or treated unfairly.  He did not submit a statement with his discharge packet wherein he could have raised the issue of a misunderstanding.

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

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)                                         AR20110016184



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ABCMR Record of Proceedings (cont)                                         AR20110016184



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