IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110018746 


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 that his general discharge be upgraded to a fully honorable discharge and that his narrative reason for separation be changed to reflect that he was discharged due to completion of required service.

2.  The applicant states that he desires to have his discharge upgraded so as to qualify for Department of Veterans Affairs (VA) benefits.  He goes on to state that he is having problems keeping steady work and has been informed by the VA that he does not qualify for benefits, which is causing a hindrance in some of his day to day needs.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army in Boston, Massachusetts on 15 May 1990 for a period of 3 years and training as a multiple launch rocket system Lance operations and fire direction specialist.  He completed his         one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Germany on 28 October 1990.

3.  On 3 May 1991 nonjudicial punishment was imposed against him for being drunk and disorderly and assaulting two Soldiers.

4.  On 4 September 1991, the applicant’s commander notified him that he was initiating action to bar him from reenlistment.  He cited the applicant’s disciplinary record, his lack of discipline, disrespect for authority, and actions that were prejudicial to good order and discipline as a basis for his recommendation.  The applicant declined the opportunity to submit a statement in his own behalf.   The appropriate authority approved the Bar to Reenlistment and the applicant elected not to appeal.

5.  On 23 December 1991 the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, due to his pattern of misconduct.  He cited as the basis for his recommendation the applicant’s three counts of failure to repair, failure to pay a just debt, drunk and disorderly, two counts of assault, insubordinate conduct towards a superior noncommissioned officer, and two counts of failure to obey an order or regulation.

6.  After consulting with counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.  He also acknowledged he had been advised of the procedures for  applying to the Army Discharge Review Board (ADRB) and this Board for an upgrade of his discharge.

7.  The appropriate authority approved the recommendation for discharge on 8 January 1992 and directed that he be discharged under honorable conditions.

8.  Accordingly, he was discharged under honorable conditions on 21 January 1992, under the provisions of Army Regulation 635-200, paragraph 14-12b due to misconduct – pattern of misconduct.  He had served 1 year, 8 months and 7 days of active service.

9.  There is no evidence in the available records to show that he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  Paragraph 3-7a of 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

2.  The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the nature of his offenses.  The applicant's overall service simply did not rise to the level of a fully honorable discharge.

3.  Additionally, while the Board has no jurisdiction over benefits administered by the department of Veterans Affairs, the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits that their service will otherwise not qualify them for based solely on the merits of the service.

4.  Accordingly, there is no basis for upgrading the applicant’s 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.




      _______ _   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)                                         AR20110018746





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ABCMR Record of Proceedings (cont)                                         AR20110018746



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