BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110025233 


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.

2.  The applicant states:

* people change
* he has received high recommendations
* he has not been in trouble
* he took care of his mother until the end of her life
* he has never been fired from a job
* 20 years have passed and it is time to upgrade his discharge

3.  The applicant provides no additional evidence.

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 7 May 1987 for a period of 3 years.  He completed his training and was awarded military occupational specialty 94B (food service specialist).  He was honorably discharged on 4 July 1990 for immediate reenlistment.  He reenlisted on 5 July 1990 for a period of 3 years.  He was honorably discharged again on 10 February 1993 for immediate reenlistment.  He reenlisted on 11 February 1993 for a period of 2 years.

3.  Between 18 March 1993 and 18 November 1993, he was counseled for:

* failing to make formation
* driving on a suspended license
* abusive behavior toward his spouse
* misconduct off duty
* failing to repair
* disobeying a lawful order
* failing to report for duty on time
* being drunk on duty
* being impaired on duty

4.  On 20 September 1993, nonjudicial punishment (NJP) was imposed against the applicant for failing to repair (four specifications).

5.  On 11 January 1994, he 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 included three NJP's (two in 1991 and one in 1993), four civilian charges for assault, suspended driving privileges for driving while intoxicated, and numerous counseling statements for various offenses.

6.  On 18 January 1994, he consulted with counsel, requested a hearing by a board of officers, and elected not to make a statement in his own behalf.

7.  On 22 March 1994, he voluntarily and conditionally waived consideration of his case by an administrative board as long as his service was characterized no less favorably than general under honorable conditions.

8.  On 30 March 1994, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  On 11 April 1994, he was discharged under honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 6 years, 11 months, and 5 days of creditable active service.

10.  On 30 December 1996, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

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.

DISCUSSION AND CONCLUSIONS:

1.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  He contends that 20 years have passed and it is time to upgrade his discharge.  However, the passage of time is not a basis for upgrading a discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  His record of service during his last enlistment included numerous adverse counseling statements for various offenses and three NJP's.  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.

6.  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)                                         AR20110025233



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ABCMR Record of Proceedings (cont)                                         AR20110025233



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