IN THE CASE OF:	  

		BOARD DATE:  17 May 2012

		DOCKET NUMBER:  AR20110020485 


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 (GD) be upgraded to an honorable discharge (HD). 

2.  The applicant states, in effect, he has changed and improved his life.  He is not the person he was.  The only thing holding him back now is his discharge.

3.  The applicant provides four letters of support.

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 served in the Regular Army from 23 April 1991 through 
12 March 1996.  

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on 1 February 1994 for failure to be at his assigned place of duty and missing movement.  

4.  On 28 June 1994, while stationed in Germany, the applicant was command referred to the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Upon return to the continental United States he was again enrolled in ADAPCP, in August 1994. 

5.  The applicant received nine negative counseling statements in 1994, principally for alcohol-related incidents and writing bad checks.  In 1995, he received six additional negative counseling statements principally for failure to pay just debts and writing bad checks.

6.  On 26 June 1995, his command was notified that after drinking heavily, he took an overdose of medication following a domestic dispute.  He denied it was a suicide attempt.

7.  On 28 November 1995, he was arrested by civil authorities under the Texas "Hot Check" law for writing three bad checks.

8.  On 7 February 1996, the applicant's immediate command notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct - a pattern of misconduct with a general discharge.  The immediate commander cited the applicant's offenses listed above as the bases for his recommendation.   

9.  On 9 February 1996, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of such a discharge, and of the procedures/rights that were available to him.  There is no evidence that the applicant submitted a statement in his own behalf.

10.  The applicant further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.
11.  On 9 February 1996, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - pattern of misconduct with the issuance of a GD.  

12.  On the same date, the separation authority approved the recommendation under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct and directed the issuance of a GD.  

13.  Accordingly, he was discharged on 12 March 1996, with the issuance of a GD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 4 years, 10 months, and 20 days of creditable active military service with no recorded lost time.

14.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  The four letters of support the applicant provided are from individuals who have known the applicant between one and 3 years.  All four individuals state, in effect, following the applicant's last rehabilitation program he has improved his life and he needs his discharge upgraded so that he may continue to improve and obtain employment.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the policies and procedures for separation of enlisted personnel: 

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his GD should be upgraded.

2.  The evidence of record shows the applicant displayed a pattern of misconduct.  He was counseled, given NJP, and numerous opportunities to do the right thing.  When all failed his chain of command initiated separation action against him.  

3.  The evidence of record shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  Based on his record of indiscipline the character of service is commensurate with the applicant's overall record of service.  He is not entitled to an HD. 

4.  The letters attesting to the applicant’s post-service conduct are noted; however, they are not sufficient to mitigate the repeated misconduct that led to 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)                                         AR20110020485



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ABCMR Record of Proceedings (cont)                                         AR20110020485



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