IN THE CASE OF:	  

		BOARD DATE:  15 May 2012

		DOCKET NUMBER:  AR20110022724 


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 upgrade of his general, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states:

   a. the exact date of his discharge was not disclosed by his company commander and he already purchased his plane ticket to travel home for Christmas;
   
   b.  he planned his flight two months in advance and could not reschedule the flight within the last two weeks prior to his discharge;
   
   c.  he did not want to continue in his current military occupational specialty (MOS) at the time and as an alternative he was offered discharge; and
   
   d.  he suffered duress due to the circumstances.

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 (RA) on 3 January 1991.  His DA Form 2-1 (Personnel Qualification Record) shows he departed absent without leave (AWOL) during advanced individual training from 11 December 1991 to 21 January 1992.

3.  The applicant’s record also shows he was formally counseled seven times during the period 27 August 1991 to 25 June 1992 for a myriad of disciplinary infractions that included:

* accumulating two returned checks due to insufficient funds
* failure to maintain personal area
* diagnostic Army Physical Fitness Test (APFT) failure
* two record APFT failures
* disobeying a lawful order

4.  The applicant’s record shows he twice accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the indicated offenses:

* 3 October 1991 - disobeying a lawful order
* 4 February 1992 - for being AWOL on or about 43 days

5.  On 5 February 1992, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - commission of a serious offense, with an under honorable conditions discharge for being AWOL.


6.  On 7 February 1992, the applicant underwent a mental status evaluation that showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he had the mental capacity to understand and participate in separation proceedings.

7.  On 18 February 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consultation with counsel; 
   
	b.  not to make a statement in his own behalf; and

   c.  to receive copies of documents sent to the separation authority supporting the proposed separation.

8.  On 11 March 1992, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of a GD.  On 16 March 1992, the applicant was discharged accordingly.

9.  The applicant's military record does not contain any evidence to show he suffered from duress at any time during his military service.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of “Misconduct-Serious Offense-AWOL", with a GD.  He completed 1 year, 1 month, and 2 days of creditable active duty service.

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


12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  he regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.

	b.  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 contends his GD should be upgraded to a HD because the discharge date was not made known to him in sufficient time to change his previously scheduled flight to go home for Christmas is insufficiently mitigating to grant the requested relief in this case.

2.  The evidence of record confirms the applicant was formally counseled on seven occasions for a myriad of infractions.  In addition it shows he accepted NJP for disobeying a lawful order and for being AWOL for on or about 43 days.  Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an honorable discharge.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.


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)                                         AR20110022724





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ABCMR Record of Proceedings (cont)                                         AR20110022724



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