IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20110022594 


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 discharge be upgraded.

2.  The applicant states he was told that after one year he could upgrade his discharge.

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 6 January 1995.  He completed basic combat, advanced individual training, and was awarded military occupational specialty 31U (Signal Support Systems Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  Records show that the applicant was counseled for several acts of indiscipline on the following dates:

a. 6 February 1995, for failure to accomplish his mission on vehicle bumper number 701;

b. 16 February 1995, 21 February 1995, and 24 March 1995 for missing formation;

c. 17 February 1995, for failure to shave on three occasions;

d. 8 March 1995, for disobeying a lawful order by leaving a live fire exercise;

e. 6 April 1995, for not reporting to his place of duty;

f. 9 May 1995, for failure to show up at work call;

g. 10 July 1995 and 10 August 1995, for writing bad checks;

h. 14 July 1995, for dereliction of duty; and

i. 2 August 1995, for failure to pay a debt.

4.  He was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates: 
   
   a.  21 March 1995, for disobeying a noncommissioned officer lawful order; and 
   
   b.  15 August 1995, for failure to maintain sufficient funds in the Fort Leonard Wood Credit Union for payment of a check.

5.  On 7 November 1995, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for pattern of misconduct.

6.  The applicant consulted with legal counsel and was advised of the basis for contemplated separation action, the possible effects of discharge, and the rights available to him.

7.  On 22 November 1995, the separation authority approved the applicant's discharge under Army Regulation 635-200 and directed that he be issued a General Discharge (GD) certificate.  On 14 December 1995, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated for misconduct.  He completed a total of 10 months and 14 days of creditable active military service with no days of lost time.

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

9.  Army Regulation 635-200 (Personnel Separations) 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.  

10.  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 that his discharge be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  The applicant’s record shows a pattern of misconduct.  He was counseled on several dates for various acts of indiscipline and was punished under UCMJ on two occasions.

4.  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.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20110022594



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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