IN THE CASE OF:
BOARD DATE: 16 August 2012
DOCKET NUMBER: AR20120003204
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 that his general discharge be upgraded to an honorable discharge.
2. The applicant states that he was discharged from the Army in 1994 and began working as an Army civilian (GS-04) and is now a GS-11 (since 1996) and has received exceptional evaluations. He goes on to state that he made one mistake and he believes he had paid his debt to society because he has not been in any trouble since.
3. The applicant provides copies of his Standard Forms 50 (Notification of Personnel Action).
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 applicants 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 applicants 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 in San Juan, Puerto Rico on 22 August 1984. He completed his one-station unit training as an administrative specialist at Fort Jackson, South Carolina and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-5 on 1 August 1991.
3. On 9 February 1994, while stationed at Fort Clayton, Panama, he was convicted by a general court-martial of twelve specifications of wrongful appropriation, two specifications of larceny, and two specifications of forgery. He was sentenced to reduction to the pay grade of E-1, a forfeiture of $500.00 per month for 6 months and confinement for 21 months.
4. On 27 June 1994, the applicants commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.
5. After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights to appear before an administrative separation board in return for a characterization of service of at least under honorable conditions (general discharge).
6. The appropriate authority (a major general) approved his request for a conditional waiver on 13 July 1994 and directed that he be discharged with a general discharge.
7. Accordingly, he was discharged under honorable conditions on 3 August 1994 under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct. He had served 9 years, 6 months, and 12 days of active service.
8. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
10. Paragraph 3-7a of Army Regulation 635-200 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 (emphasis added), 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 applicants contentions and post-service accomplishments have been noted; however, they are not sufficiently mitigating when compared to the serious nature of his offenses. The applicants overall service simply does not rise to the level of a fully honorable discharge.
4. Accordingly, there appears to be no basis to grant the applicants request for an upgrade of his discharge.
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) AR20120003204
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ABCMR Record of Proceedings (cont) AR20120003204
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