BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110022188 


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 honorable and amendment of his narrative reason for separation.

2.  The applicant states:

* he wants to correct the mistakes of his youth
* he loved serving his country and would value the opportunity to prove his himself worthy of it
* he promises he would not disappoint if given this chance

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 15 October 1975.  He enlisted in the Regular Army on 12 January 1994 at 18 years of age for a period of 6 years.  He completed his training and was awarded military occupational specialty 67S (helicopter repairer).

3.  On 2 August 1995, nonjudicial punishment (NJP) was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer (NCO) and failing to go at the time prescribed to his appointed place of duty.

4.  Between 15 February 1995 and 12 February 1996, he was counseled for:

* failing to repair
* missing formations
* failing to report for duty
* displaying insubordinate conduct toward an NCO
* failing to obey a direct order
* failing to arrange transportation to physical training
* failing to shave

5.  The applicant was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  The unit commander cited the applicant's established pattern of misconduct which includes disrespect towards NCO's and being absent from his place of duty on many occasions.

6.  On 26 March 1996, the applicant acknowledged receipt of notification under the provisions of chapter 14, Army Regulation 635-200.

7.  The separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

8.  On 3 May 1996, he was discharged under honorable conditions (general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 2 years, 3 months, and 22 days of creditable active service.



9.  His DD Form 214 shows:

* in item 25 (Separation Authority), the entry "Army Regulation 635-200, paragraph 14-12b"
* in item 26 (Separation Code), the entry "JKA"
* in item 28 (Narrative Reason for Separation), the entry "misconduct"

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

11.  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 (military or civilian 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.

12.  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.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code "JKA" is "misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he wants to correct the mistakes of his youth.  However, age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  His record of service included adverse counseling statements for various offenses and one NJP.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  The applicant's narrative reason for separation is correct and was applied in accordance with regulatory guidance.  Therefore, there is no basis for granting the applicant's request to change his narrative reason for separation.

5.  In view of the foregoing, there is no 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 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)                                         AR20110022188



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ABCMR Record of Proceedings (cont)                                         AR20110022188



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