IN THE CASE OF:	  

		BOARD DATE:	    19 July 2012

		DOCKET NUMBER:  AR20120002085 


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 his general discharge be upgraded to honorable.

2.  The applicant states he knows his behavior was unsatisfactory and although being young is not an excuse he was young and did not know any better.  His life is now headed in a different direction and with the support of his family he hopes to build a solid foundation so that he can continue to grow and become the citizen God intended.  He wants to be able to say he is a true American Soldier and having his discharge upgraded will allow him to achieve that goal.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three statements of support.

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's records show he enlisted in the Regular Army on 1 October 1993 when he was 18 years of age and he held military occupational specialty 13B (Cannon Crewmember).  He was awarded the Army Service Ribbon, National Defense Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

3.  He was assigned to 1st Battalion, 17th Field Artillery, Fort Sill, OK, on 7 February 1994.

4.  Between March and November 1994, he was frequently counseled by various members of his chain of command for repeatedly failing to be at his appointed place of duty and failing to maintain insurance on his privately owned vehicle (POV).

5.  On 4 August 1994, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to his appointed place of duty.

6.  On 31 August 1994, his post exchange (PX) privileges were suspended for 6 months for shoplifting.

7.  On 19 September 1994, he received NJP under the provisions of Article 15, UCMJ for stealing property from the PX. 

8.  On 29 November 1994, his on-post driving privileges were suspended for 6 months for accumulating 15 traffic points within a period of 12 months.

9.  He was subsequently notified by his immediate commander of the commander's intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  The commander stated this was based on the applicant's record of NJP for larceny, the suspension of his on-post driving privileges, and failure to follow a lawful order to keep insurance on his car.  He also stated he was recommending the applicant receive a general discharge. 

10.  On 24 January 1994, the applicant acknowledged receipt of the proposed discharge action.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter considerable prejudice in civilian life and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result. 

11.  On 26 January 1995, his senior commander recommended approval of his separation action with a general discharge.

12.  On 31 January 1995, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with the issuance of a General Discharge Certificate.  On 9 February 1995, he was discharged accordingly.

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct with an under honorable conditions characterization of service.  He completed 1 year, 4 months, and 9 days of active service with 2 days of time lost due to civilian confinement.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  The applicant provides three statements of support, dated 10 December 2011, wherein three acquaintances stated the applicant was a caring person, fun to be with, and a good citizen. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 was merited by the Soldier's overall record.  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 evidence of record shows the applicant committed a serious offense (larceny).  Accordingly, his immediate commander initiated separation action against him.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

2.  The applicant contends his discharge should be upgraded because he was young and didn't know any better at the time of his service.  Records show that he was 19 years of age at the time of his offenses.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, he is not entitled to the 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)                                         AR20120002085



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ABCMR Record of Proceedings (cont)                                         AR20120002085



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