IN THE CASE OF:
BOARD DATE: 17 July 2012
DOCKET NUMBER: AR20120000503
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 situation surrounding his discharge has been rectified and he was unaware he had to apply for the characterization of the discharge to be corrected.
3. The applicant provides 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 19 January 1988 for a period of 4 years. He served as a food service specialist. On 6 August 1991, he was honorably discharged for the purpose of immediate reenlistment. He reenlisted on 7 August 1991 for a period of 3 years.
3. Between March 1992 and June 1992, he was counseled for various infractions that included:
* Passing dishonored checks
* Lying to his commander
* Being late for duty
* Being absent without leave
* Having a delinquent account
* Failing to report
* Sleeping on duty
* Losing his identification card
4. On 9 September 1992, the applicant was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12b, for misconduct. The unit commander cited the applicant's continued pattern of misconduct and bad checks.
5. On 9 September 1992, he consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement in his own behalf.
6. On 29 September 1992, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.
7. On 19 October 1992, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct) with a general discharge. He completed a total of 5 years, 1 month, and 9 days of creditable active service.
8. There is no evidence 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 (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.
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 members 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.
2. Although an under other than honorable conditions discharge was normally appropriate for a Soldier discharged under the provisions of Army Regulation
635-200, chapter 14, it appears the separation authority considered the applicant's total service when he directed the issuance of a general under honorable conditions discharge.
3. His record of service during his last enlistment included numerous adverse counseling statements for various offenses. 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.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a fully 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) AR20120000503
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ABCMR Record of Proceedings (cont) AR20120000503
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