IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110024648 


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 discharge to an honorable discharge.

2.  The applicant states the appropriate time has passed and he wants the upgrade for reasons of employment and benefits.

3.  The applicant provides no additional documentation.

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 2 September 1986.  He completed his initial training and he was awarded military occupational specialty 94B (Food Service Specialist).
3.  On 29 January 1987, the applicant was assigned for duty as a cook with the 293rd Engineer Battalion, located in the Federal Republic of Germany.

4.  The applicant accepted the following nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  13 May 1987, for driving without a license;

	b.  13 November 1987, for failing to report to his place of duty; and

	c.  7 January 1988, for breaking restriction.

5.  The applicant was counseled on:

	a.  4 May 1987, for operating his privately own vehicle without a driver's license or vehicle registration;

	b.  7 May 1987, for failing to get a haircut as ordered;

	c.  12 May 1987, for his lack of interest and initiative resulting in burnt food;

	d.  29 June 1987, for reporting late for duty; and

	e.  22 October 1987, for failing to properly secure his personal belongings.

6.  At a mental status evaluation on 11 January 1988, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good. The applicant was mentally responsible.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.

7.  On 26 January 1988, the applicant's commander requested a waiver of the requirement for a rehabilitative transfer because he believed any further duty would create serious discipline problems and affect the unit's mission.  On 
28 January 1988, the appropriate authority approved the waiver request.

8.  On 4 February 1988, the applicant's commander notified him of his intention to separate him from the service under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The applicant acknowledged the notification.

9.  On 4 February 1988, the applicant informed the commander, in writing, that he had been afforded the opportunity to consult with counsel, but declined to do so.  Furthermore, he elected to not submit a statement in his own behalf.

10.  On 4 February 1988, the commander requested the applicant be discharged based on his NJPs and his total disregard for Army rules.

11.  On 9 February 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14, and directed the issuance of a DD Form 257A (General Discharge Certificate).

12.  On 26 February 1988, the applicant was accordingly discharged by reason of "Misconduct - Pattern of Misconduct."  He completed 1 year, 5 months, and
25 days of creditable active service.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 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.

	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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Although an under other than honorable conditions discharge was normally appropriate for a Soldier discharged for a pattern of misconduct, it appears the chain of command considered his overall record of service when they recommended him for a general discharge, which the separation authority concurred with.  Therefore, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for educational, health, and other benefits should be addressed to the Department of Veterans Affairs.

3.  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 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)                                         AR20110024648



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ABCMR Record of Proceedings (cont)                                         AR20110024648



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