IN THE CASE OF:	  

		BOARD DATE:  26 July 2012

		DOCKET NUMBER:  AR20120002786 


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 qualified for a discharge upgrade to honorable after 6 months
* He wants his discharge upgraded so he can obtain benefits and reasonable employment

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

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 15 August 1988 for a period of 4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman). 

3.  He was counseled on:

* 23 January 1989 for failure to maintain proper personal hygiene and leaving valuables unsecured
* 13 February 1989 for failure to report to duty

4.  On 16 February 1989, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.

5.  On 24 February 1989, NJP	was imposed against the applicant for being absent without leave (AWOL) from formation.

6.  On 12 May 1989, a bar to reenlistment was imposed against the applicant for receiving two NJPs and two adverse counseling statements.   

7.  On 21 August 1989, NJP was imposed against the applicant for failing to report to duty at the prescribed time.

8.  On 6 September 1989, NJP was imposed against the applicant for failing to report for formation.

9.  On 21 September 1989, he was notified of his pending separation action for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  The unit commander cited the applicant had repeated difficulty in adjusting to the reasonable demands of military service, he continually failed to follow orders, and efforts to rehabilitate him have failed.

10.  On 21 September 1989, he consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued to him, and he elected not to submit a statement on his own behalf.  

11.  On 11 October 1989, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

12.  On 17 October 1989, he was discharged under honorable conditions (general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 1 year, 2 months, and 3 days of creditable active service.
13.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  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 (military or civilian 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.  

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he qualified for a discharge upgrade to honorable after 6 months.  However, a discharge upgrade is not automatic.

2.  He contends he wants his discharge upgraded so he can obtain benefits (apparently he means Department of Veterans Affairs benefits).  However, a discharge is not changed for the purpose of obtaining benefits.

3.  He contends his general discharge hinders his employment opportunities.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.



4.  His record of service included four NJPs and a bar to reenlistment.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

7.  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)                                         AR20120002786



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ABCMR Record of Proceedings (cont)                                         AR20120002786



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