BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110021924 


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 general discharge be upgraded to honorable.

2.  The applicant states, in effect:

	a.  His discharge was inequitable because it was based on one isolated incident in 8 years of service with no adverse action.  He completed 30 days of extra duty for the offense he was charged with, demoted from specialist (SPC) to private, and he lost out on 10,000 to 15,000 dollars in compensation for 8 years of service.  He was just a couple of months from his expiration term of service date when the incident occurred.  He is not saying he is innocent, he just believes the punishment was too harsh.

	b.  He now realizes he was suffering from depression, now known as post-traumatic stress syndrome, due to experiences associated Operation Desert Storm.  He was also going through a separation/divorce from his former spouse. She took his children back to Germany as he was in the process of transitioning out of the Army.  It was a very difficult time for him and he expressed this to his chain of command, but he received no consideration.

	c.  Since his discharge, he has remarried and his wife is a sergeant first class serving on active duty.  He has three children and is a role model citizen to his family and Army community wherever they have been stationed.  It is very important to him and his family that his discharge is upgraded so he can provide for his family.  He gained an enormous amount of experience and knowledge while serving in the Army but he can't use it in the civilian world because of his discharge status.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a statement of support, a letter, and 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's records show he enlisted in the Regular Army on 14 February 1989 and he held military occupational specialty 92A (Automated Logistical Specialist).  He served in Southwest Asia from 2 January to 18 June 1991 while assigned to the 54th Support Battalion, Germany.  He was promoted to SPC on 1 May 1991.

3.  On 27 February 1995, he was assigned to Headquarters and Headquarters Company, 61st Ordnance Brigade, Aberdeen Proving Ground, MD.

4.  Between 17 May 1995 and 22 July 1996, he was frequently counseled by various members of his chain of command for repeatedly failing to follow instructions, failing to comply with military standards, substandard work performance, and numerous instances of failing to go to his appointed place of duty at the prescribed time.

5.  On 26 June 1996, he underwent a mental status evaluation at the request of his immediate commander.  The examining physician found the applicant had no mental disorder and was mentally responsible for his behavior.

6.  On 18 July 1996, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana and cocaine between 4 May and 3 June 1996.
7.  On 13 August 1996, he received NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty at the prescribed time.

8.  On 3 September 1996, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct, specifically the abuse of illegal drugs, and the counseling he received numerous times for patterns of misconduct.  He recommended the applicant receive an under other than honorable conditions discharge.

9.  On 3 September 1996, the applicant acknowledged receipt of the proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of an under other than honorable conditions discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.  He requested consideration of his case by an administrative separation board. 

10.  On 4 September 1996, his intermediate and senior commander recommended approval of his separation action with the issuance of an under other than honorable conditions discharge.

11.  On 25 September 1996, he was notified that an administrative separation board would convene on 11 October 1996 to determine if he should be involuntary separated.

12.  On 3 October 1996, he submitted a request for a conditional waiver of consideration of his case by an administrative board contingent upon him receiving a general discharge.

13.  Subsequently, the separation authority approved the applicant's request and directed that he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with the issuance of a General Discharge Certificate.  On 21 October 1996, he was discharged accordingly.

14.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct with an under honorable conditions characterization of service.  He completed 7 years, 8 months, and 8 days of active service.
15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  The applicant provides a statement of support, dated 29 August 2011, wherein his spouse stated the applicant is a man of integrity and extremely dedicated to his family and work.  He is a very productive member of the community and has not gotten into any trouble since his discharge.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.

18.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous counselings he received for failing to report, failing to follow instructions, substandard performance, and the NJP he received on two occasions for wrongfully using illegal drugs and failing to go to his appointed place of duty.  Accordingly, his immediate commander initiated separation action against him.

2.  There is no evidence in his records and he did not provide any evidence that shows he was diagnosed with or suffered from any medical/mental condition while on active duty that affected his duty performance.  In a mental status evaluation conducted on 26 June 1996, the examining physician found he had had no mental disorder.

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  It appears the separation authority considered the amount of time the applicant had served when he directed that the applicant be issued a General Discharge Certificate vice an under other than honorable conditions discharge as his chain of command recommended.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, there is an insufficient evidentiary basis for granting the applicant's request.

4.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for employment or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction of his military records.

5.  Although the applicant's post-service conduct may be noteworthy it does not mitigate the fact that he wrongfully used marijuana and cocaine during his military service.

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)                                         AR20110021924



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ABCMR Record of Proceedings (cont)                                         AR20110021924



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