IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001970 


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.  He states he was going through the death of two parents 6 months apart.  He really did not care about anything at that point.

3.  He provides no additional documents.

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.  After completing prior service in the Army National Guard, the applicant enlisted in the Regular Army on 6 October 1987 for a period of 4 years.  He completed the required training and he was awarded military occupational specialty 91D (Operating Room Specialist).

3.  His service record contains two DA Forms 4187 (Personnel Action) that indicate he was confined in the hands of civilian authorities from 20 to 21 June 1988.

4.  On 14 July 1988, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated by his unit commander for various reasons, including acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to report on 25 May, and for failing to report and disobeying a lawful order on 5 January 1988; two letters of indebtedness; a dishonored check notification from the Fort Hood, TX post exchange; three general counseling statements on 11 April, 21 April, and 24 May 1988; and a notification to appear before the U.S. Magistrate.

5.  On 19 July 1988, the applicant acknowledged receipt of a copy of his commander's recommendation to bar him from reenlistment and that he was counseled and advised of the basis for the action.  He elected not to submit a statement in his own behalf.

6.  On 29 July 1988, he accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty on 25 July 1988.

7.  Between December 1987 and August 1988, he received numerous adverse counseling statements for:

* failing to report to duty
* writing bad checks
* failing to perform his assigned duties
* leaving early from his place of duty 
* being absent from duty
* missing formation
* being ineligible for promotion
* failing to pay debts

8.  On 6 August 1988 the appropriate authority approved the Bar to Reenlistment Certificate.

9.  On 15 August 1988, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army 


Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for misconduct with a general discharge.  He was advised of his rights.  He acknowledged receipt of the proposed separation action on the same date.

10.  The applicant was advised by consulting counsel of the basis for the contemplated action and its effects, of the rights available to him, and of the effect taken by him to waive his rights.  He elected not to submit a statement in his own behalf.

11.  The applicant's immediate commander subsequently recommended that the applicant be processed for separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b for repeated indebtedness and substandard duty performance.  The intermediate commanders concurred with the issuance of a General Discharge Certificate.

12.  On 15 September 1988, the separation authority waived rehabilitative requirements and approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct with issuance of a General Discharge Certificate.

13.  On 21 September 1988 he was discharged accordingly.  He completed
11 months and 14 days of creditable active service this period with two days of time lost.

14.  His record is void of any indication during his period of service that he was coping with the recent loss of either of his parents.

15.  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.  

16.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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 states 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 Board is empathetic towards the applicant regarding the loss of his parents.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the pattern of misconduct that led to his discharge.

2.  The evidence of record shows the applicant received three Article 15s, he was confined by civilian authorities for 2 days, he received numerous adverse counseling statements for various acts of misconduct, and he received a bar to reenlistment.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.  Although an under other than honorable conditions discharge was normally appropriate for the authority and reason for his discharge, it appears his chain of command and final approval authority considered his overall record of service, resulting in the issuance of a general, under honorable conditions discharge.

5.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants upgrading his general discharge to an honorable.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120001970



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ABCMR Record of Proceedings (cont)                                         AR20120001970



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