IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120001558 


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 he was young and got caught up in the downsizing of the Armed Forces.  He has since realized the errors he made in his youth and would like to correct them.

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.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 13 July 1993 at the age of 22 years, 8 months, and 5 days.
He completed the training requirements and he was awarded military occupational specialty 67N (UH-1 Helicopter Repairer).  The highest rank/grade he attained while serving on this period of active duty was specialist (SPC)/E-4.  However, he held the rank/grade of private first class (PFC)/E-3 at the time of his separation.

3.  His awards and decorations include the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and the Aircraft Crewman Badge.

4.  On 20 April 1994, he received a General Officer Memorandum of Reprimand (GOMOR) for operating a motor vehicle with a blood/alcohol level of .122 percent (%).

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 7 June 1994 for being absent from his unit on 6 June 1994
* 19 September 1994 for failing to go at the time prescribed to his appointed place of duty on 12 September 1994
* 22 September 1994 for failing to go at the time prescribed to his appointed place of duty on 15 September 1994

6.  His records show that on numerous occasions between August 1995 and February 1996, he received counseling for failing to accomplish assigned tasks, disobeying lawful orders, disrespect, and for failing to report to his appointed place of duty at the time prescribed.

7.  On 12 April 1996, the applicant was notified of the unit commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory performance with a general discharge.

8.  On 16 April 1996, the applicant consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge is issued to him.  He also understood that he may apply to the Army Discharge Review Board or the ABCMR for upgrading; however, an act of consideration by either board did not imply his discharge would be upgraded.  He further waived consideration by or personal appearance before an administrative separation board.  He elected not to submit any statements in his own behalf.

9.  On 17 April 1996, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 13.  He recommended the applicant receive a general discharge.

10.  On 29 April 1996, the separation authority waived further rehabilitation efforts, approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the applicant be issued a general discharge.

11.  On 7 May 1996, the applicant was discharged accordingly.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 years, 9 months, and 25 days of creditable active military service during this period with no time lost.

12.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A general or honorable discharge was considered appropriate.

14.  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 available evidence shows his duty performance was tarnished by a GOMOR, three instances of NJP, and a history of negative counseling.  Accordingly, his unit commander initiated separation action against him.  The evidence further shows his separation processing was accomplished in 


compliance with applicable regulations and there is no evidence of procedural errors which would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.

2.  The applicant was over 23 years of age at the time he committed his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.  Therefore, based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

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)                                         AR20120001558



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001558



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1