IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120005374 


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 under honorable conditions discharge to an honorable.

2.  The applicant states his mother passed away while he was in the service.  This hit him hard.  Then his aunt passed away.  He asked for an extension of his leave but it was not allowed.  At the time he only had about 3 months remaining to serve.  He asked for an early out and they gave it to him; however, he did not notice that his discharge was under honorable conditions until he tried to file for benefits with the Department of Veterans Affairs (DVA).

3.  The applicant provides no additional documentation.

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.  On 19 March 1985, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer).

3.  The applicant accepted nonjudicial punishment (NJP) under the summarized record of proceedings under Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  27 February 1990, for failing at the time prescribed to go to appointed place of duty on 23 February 1990 (muster formation) and on 27 February 1990 (duty/work call formation); and

	b.  16 July 1992, for wrongfully appropriating two meals from the battalion consolidated dining facility, with a value of about $2.90, the property of the U.S. Government.

4.  On 1 August 1992, the applicant was charged by civilian authorities with driving under the influence and operating a motor vehicle with a suspended license.

5.  On 14 August 1992, at a mental status evaluation, the applicant's behavior was found to be slightly aggressive.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory fair.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  On 3 September 1992, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), for the commission of a serious offense.  He had been arrested by the civilian authorities for driving under the influence.  The commander also cited his two NJPs.  The commander recommended he receive an honorable discharge.

7.  On 3 September 1992, the applicant acknowledged receipt of the commander's recommendation.

8.  On 9 September 1992, the applicant consulted with legal counsel who advised him of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights.  The applicant waived his rights and elected not to make a statement in his own behalf.

9.  On 5 October 1992, the applicant was reduced to the rank/grade of private first class (PFC)/E-3 for inefficiency.

10.  On 21 October 1992, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b and c, by reason of pattern of misconduct and commission of a serious offense.  As such, the separation authority directed the applicant be given a General Discharge Certificate.

11.  On 27 October 1992, the applicant was accordingly discharged with a general discharge.  He completed 7 years, 7 months, and 9 days of creditable active service.

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

13.  Army Regulation 635-200, in effect at the time, 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.  
However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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.
14.  Under the UCMJ, the maximum punishment allowed for driving under the influence is confinement for 6 months and a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge because he wants to obtain VA benefits.

2.  The applicant's record contains 2 NJP's and a civilian arrest record for driving under the influence.  This clearly shows he committed a serious offense.

3.  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.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.  Although the applicant's immediate commander recommended separation with an honorable discharge, it appears the separation authority, taking into consideration the applicant's overall service, decided to discharge him with a general discharge instead of the under other than honorable conditions discharge normally appropriate for a Soldier discharged under Army Regulation 635-200, chapter 14.

5.  The applicant offered no evidence or convincing argument, other than to say he had a hard time while in the service due the deaths of his mother and aunt, that would justify upgrading his discharge.

6.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests an upgrade of his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for DVA benefits should be addressed to that agency.


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)                                         AR20120005374



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ABCMR Record of Proceedings (cont)                                         AR20120005374



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