IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120002698 


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 that during the process of his separation he was told his discharge would be automatically upgraded and he desires to use his education benefits.

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 17 December 2002 for a period of 4 years, training as a unit supply specialist, and assignment to Korea.  He completed his basic training at Fort Jackson, SC and his advanced individual training at Fort Lee, VA before being transferred to Korea.  He completed his
1-year tour in Korea and he was transferred to Fort Carson, CO on 27 May 2004.  He was advanced to the pay grade of E-4 on 1 August 2004.

3.  On 29 November 2004, he reenlisted for a period of 4 years, assignment to Fort Carson, and a Selective Reenlistment Bonus (SRB).

4.  On 18 April 2005, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and for being absent without leave (AWOL) from 28 March to 29 March 2005.

5.  On 19 July 2005, NJP was imposed against him for being AWOL from
10 June to 7 July 2005.

6.  On 10 August 2005, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct due to a pattern of misconduct.  He cited the applicant's repeated misconduct and disciplinary record as the basis for his recommendation.

7.  The applicant waived his right to consult with counsel and elected not to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge and directed the applicant be furnished a general discharge.

9.  Accordingly, on 29 August 2005, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct, with a general discharge.  He completed 2 years, 8 months, and 29 days of creditable active service with 30 days of time lost due to AWOL.

10.  On 25 October 2007, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  After reviewing the available records and the considering the applicant's contentions, on 26 September 2008, the ADRB determined his discharge was both proper and equitable and denied his request.


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious 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.  

	b.  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 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.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

3.   The applicant's contentions have been noted; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses.  The applicant's overall service simply does not rise to the level of  an honorable discharge.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

5.  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)                                         AR20120002698



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ABCMR Record of Proceedings (cont)                                         AR20120002698



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