IN THE CASE OF:	  

		BOARD DATE:  31 May 2012

		DOCKET NUMBER:  AR20110023045 


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 states, in effect, his general discharge does not represent who he is today.  He is a proud veteran and he regrets the decisions that he made as a young Soldier.  At the time, he could not see the future or his potential in the Armed Forces.  He further states he has grown as a man based on the things that he learned in the Army.  The lessons that he learned has helped to propel his life to a level he could not have reached had he not joined the Army.  He is now a father of four, a leader, and a teacher.  He believes an upgraded discharge will allow him to continue to grow and support his family.

3.  The applicant provides a certificate showing completion of basic training and a diploma showing completion of advanced individual training.

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 July 1993 at the age of 18.  He completed the training requirements and he was awarded military occupational specialty (MOS) 92A (Automated Logistics Specialist).  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of discharge.  

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for the offenses indicated:

	a.  on 13 December 1994, for failing to go to his appointed place of duty (twice) and for disobeying a lawful order; and

	b.  on 14 June 1995, for willfully disobeying a lawful order.

4.  The applicant’s record contains numerous negative counseling statements for the following offenses:  missing formation, disobeying lawful orders, failing to show up for scheduled appointments, and dishonesty.

5.  On 25 January 1995, the applicant received a Bar to Reenlistment Certificate.  On 4 April and 11 July 1995, the applicant’s Bar to Reenlistment Certificate was reviewed and his company commander did not recommend removal. 

6.  On 15 September 1995, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, chapter 14 for patterns of misconduct.  The commander further stated his reason for taking this action was the applicant’s continued deficiencies after receiving formal counseling, two instances of receiving punishment under Article 15, and a Bar to Reenlistment Certificate.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.

7.  On 29 September 1995, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge.  On 20 November 1995, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for misconduct.  He completed 2 years, 4 months, and 15 days of creditable active service with no recorded lost time.
8.  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.

9.  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, 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 to upgrade his discharge was carefully considered and determined to be without merit.

2.  The applicant's record shows he was age 18 at the time of enlistment and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The evidence of record shows the applicant received numerous negative counseling sessions, multiple instances of nonjudicial punishment and a bar to reenlistment.  These offenses are acts of misconduct which warrant a less than fully honorable discharge.

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 the applicant's record of indiscipline his 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)                                         AR20110023045



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110023045



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1