IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120001413 


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 correction of his military records to show he was given 5 years of service credit.

2.  The applicant states, in effect, that he was denied reentry for a period of 
2 years and had to fight the recruiters for another 3 years until he regained entry into the service.  He feels he should receive credit for this time.  He argues that when his characterization was upgraded, he was informed that he should never have been discharged.

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.  At the time of his application, the applicant was serving in the rank of staff sergeant, pay grade E-6, as a member of the Kansas Army National Guard.

3.  On 12 August 1992, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

4.  On 4 April 1995, the applicant reenlisted in the Regular Army.

5.  On 18 October 1996, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct.  The administrative discharge packet is not available for review.  The applicant's DD Form 214, as issued at the time, reported his characterization of service as under honorable conditions and his reentry code (RE) as 3.

6.  On 12 April 2006, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB found that the commander had improperly considered nonjudicial punishment that he had received during a previous period of honorable service in determining his characterization of service.  Consideration of such evidence is improper unless the Soldier receives a fully honorable characterization of service.  Accordingly, the ADRB voted to change his characterization to fully honorable and to change his RE code to 1.  However, the ADRB also determined that the reason for the discharge was both proper and equitable.  There is no evidence showing that the ADRB informed the applicant that he should not have been discharged.

7.  The applicant was subsequently issued a DD Form 214 reflecting an honorable characterization of service, under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority, with an RE code of 1.

8.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of 


each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was given 5 years of service credit because he was improperly discharged in 1996 and it took him 5 years to regain entry into the service.  He argues that when his characterization was upgraded, he was informed that he should never have been discharged.

2.  The available evidence clearly shows that the applicant was discharged in 1996 due to misconduct.  A subsequent review of his discharge in 2006 by the ADRB found that the commander had improperly considered the applicant's misconduct during a previous period of honorable service in determining his characterization of service.  Because of this error, the ADRB voted to change his characterization from under honorable conditions to honorable.  However, the ADRB also determined that the applicant's misconduct was the proper reason for his discharge.  Accordingly, the ADRB clearly stated his discharge was proper and equitable.  

3.  His commander did not err in using that misconduct in determining whether to separate him, only in using it in determining the characterization of his service.

4.  There is no evidence of an error or injustice that still requires correction.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20120001413





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ABCMR Record of Proceedings (cont)                                         AR20120001413



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