IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110020684 


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 to an honorable discharge.

2.  The applicant makes no statement.

3.  The applicant provides no additional evidence.

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.  With prior active and inactive service, on 3 February 1994, the applicant enlisted in the Regular Army.  He was assigned to Fort Hood, TX, for duty in his military occupational specialty 71L (Administrative Specialist).


3.  On 1 April 1994, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

4.  Between 28 April and 24 October 1994, the applicant was counseled on five occasions for:

* failing to repair (three incidents)
* disrespecting a noncommissioned officer
* disobeying a command/order

5.  On 24 October 1994, the applicant's commander initiated a bar to reenlistment action against the applicant.  He cited the applicant's record of non-payment of just debts and his failure to maintain financial responsibility.  On
27 October 1994, the appropriate authority approved the Bar to Reenlistment Certificate.  On 28 October 1994, the applicant was counseled on his approved bar to reenlistment and advised of his right to appeal the imposed bar.  He elected not to appeal the bar.

6.  Between 20 January and 14 February 1995, the applicant was counseled on five occasions for:

* failing to repair (three times)
* repeated indebtedness
* suspension of check cashing privileges

7.  On 25 January 1995, the applicant's bar to reenlistment was reviewed to determine whether to keep the bar in effect or to recommend removal of the bar.  The commander decided the bar to reenlistment would remain in effect.

8.  On 21 March 1995, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for testing positive for marijuana.

9.  On 6 April 1995, the applicant appeared in a civilian court in Bell County, TX, where he pled guilty to the offense of "issuance of a bad check, a Class C misdemeanor."

10.  In April 1995, the applicant's bar was again reviewed.  The commander again determined the bar to reenlistment would remain in effect.

11.  On 26 June 1995, the applicant's company commander notified him of his intent to take action to effect his discharge under the provisions of Army 


Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2) for misconduct – commission of a serious offense.  The commander cited the applicant's use of marijuana, a pattern of indebtedness, unsatisfactory performance, and lack of following Army standards and regulations.

12.  The applicant consulted with counsel concerning his rights.  He elected to make a statement in his own behalf.  He understood that he had financial difficulties in the past and he had used marijuana, but he stated that was all behind him.  He requested to receive an honorable discharge.  He further stated he had consolidated his debts and he had been making regular payments to his creditor.  He had remained out of debt since that time.  He also stopped being friends with certain people and he had refocused his priorities.  He understood that his active duty career was over; however, he wanted to return to his former U.S. Army Reserve (USAR) unit.  A general discharge would preclude him from doing so.

13.  On 26 June 1995, the applicant's commander recommended his separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He requested a waiver of further rehabilitative efforts.

14.  The appropriate authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.  Furthermore, he was not to be transferred to the USAR.

15.  On 14 August 1995, the applicant was accordingly discharged.  He completed 1 year, 6 months, and 12 days of net active service this period, for a total of 1 year, 9 months, and 28 days of creditable active service.

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

17.  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 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 general discharge if such is merited by the Soldier’s overall record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable; however, he offers no documentary evidence or convincing argument for doing so.

2.  The applicant's record shows he was counseled on ten occasions for various acts of misconduct, accepted nonjudicial punishment for marijuana use, was convicted in a Texas county court of issuing a bad check, and failed to maintain his finances.  These are clear acts of misconduct.

3.  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.

4.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110020684



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ABCMR Record of Proceedings (cont)                                         AR20110020684



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