IN THE CASE OF:	

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110020676 


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 under honorable conditions (general) discharge be upgraded to an honorable discharge.

2.  The applicant states:

* his commander showed severe prejudice towards him by not allowing him to transfer to another unit after he committed a small infraction
* he had no recourse but to leave active duty
* he paid $1,200.00 for the Montgomery GI Bill and is unable to use the benefit without an honorable discharge
* his nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was due to the discriminatory nature of a young company commander who singled his minor infractions out as a reason to not discharge him honorably
* he was pushed out of the military before he could make a rational decision to stay in
* he was a good Soldier and proud to serve his country
* he was young and needed more self-discipline
* he wanted to leave the military because his commander basically showed him biased authority traits the entire time he was with the 564th Military Police Company  



3.  The applicant provides:

* self-authored statements
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 U.S. Army Reserve Delayed Entry/Enlistment Program (DEP) on 10 June 1988.  He was discharged from the DEP and enlisted in the Regular Army on 9 November 1988.  He completed training and was awarded military occupational specialty 95B (Military Police).  The highest rank/grade he attained while on active duty was private first class/E-3.  

3.  The applicant's DA Form 3286-60 (Statement for Enlistment, U.S. Army Enlistment Options), dated 9 November 1988, shows the applicant acknowledged he would forfeit his entitlement to the GI Bill if he failed to complete his initial term of enlistment.

4.  A DA Form 4856 (General Counseling Form), dated 1 June 1989, shows the applicant was counseled on the expectations and responsibilities expected of a military police.

5.  On 30 August 1989, the applicant received a Letter of Reprimand for the following:

* being drunk and disorderly
* consuming alcoholic beverages in a military vehicle and throwing beer cans from the rear of the vehicle
* performing unsafe acts by slipping and sliding down the barracks hall which resulted in a Soldier being injured
6.  A DA Form 4856, dated 18 September 1989, shows the applicant was counseled on the following:

* possible separation from the service
* his deficiencies
* climbing down a fire escape intoxicated

7.  On 12 February 1990, the applicant received an Article 15, UCMJ, for striking another Soldier in the face with a closed fist.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 7 March 1990, shows the applicant had no mental deficiencies and had the mental capacity to understand and participate in separation proceedings.

9.  On 16 May 1990, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - conduct unbecoming a military police.

10.  The applicant acknowledged receipt of the notification and signed a statement indicating he understood his service would be characterized as under honorable conditions, he could expect to encounter substantial prejudice in civilian life, he was provided the opportunity to consult with the Trial Defense Counsel, there was no automatic upgrading nor review by any government agency, and that he must apply to the Army Discharge Review Board or the ABCMR for a review of his discharge.

11.  On 23 May 1990, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of an under honorable conditions (general) discharge.  On 18 June 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged for misconduct-minor disciplinary infractions.  He completed 1 year, 7 month and 10 days of creditable active service.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under honorable conditions (general) discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  Records show the applicant was 19 years of age at the time of his indiscipline.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  The evidence of record confirms the applicant's commander notified him of the intent to separate him with an under honorable conditions (general) discharge.  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.

4.  There is no evidence in the available record and the applicant did not provide any evidence which shows his discharge was in error or unjust.  Absent such evidence, there is no basis for granting the applicant's request.

5.  The ABCMR does not grant requests for an upgrade of a discharge solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for Department of Veterans Affairs (VA) benefits should be addressed to the VA.



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 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)                                         AR20110020676



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ABCMR Record of Proceedings (cont)                                         AR20110020676



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