IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120005790


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 makes no statement in support of his request.

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 Army National Guard (ARNG) on 27 March 1991. He entered active duty on 13 May 1991, completed one station unit training at 

Fort Benning, GA, and he was awarded military occupational specialty 11B (Infantryman).  On 9 August 1991, he was released from active duty and he was returned to the control of the ARNG.

3.  On 25 October 1993, he enlisted in the Regular Army (RA) and he was assigned to Company B, 312th Military Intelligence Battalion, Fort Hood, TX.

4.  His record shows he was formally counseled by members of his chain of command on at least 14 occasions between 14 April 1994 and 25 July 1995, for a myriad of performance and conduct-related matters that included disobeying orders, failing to be at his appointed place of duty, disrespecting senior noncommissioned officers (NCO), indebtedness, negligence of government equipment/facilities, and overall unsatisfactory duty performance.

5.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  26 September 1994, for failing to go at the time prescribed to his appointed place of duty on 1 September 1994; and

	b.  15 June 1995, for willfully and wrongfully damaging government property on 4 April 1995, and for passing worthless checks to the Army and Air Force Exchange Service (AAFES) in the amount of $939.95 between 1 May 1995 and 11 May 1995.

6.  On 1 August 1995, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – pattern of misconduct.  On 1 August 1995, the applicant acknowledged receipt of this notification.

7.  On 1 August 1995, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by, and personal appearance before, an administrative separation board (as he had less than 6 years of active duty, he did not qualify for this board).  He also elected not to submit a statement in his own behalf; however, he chose to be represented by counsel.

8.  On 16 August 1995, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge.  On 15 September 1995, he was discharged 

accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  He completed 1 year, 10 months, and 21 days of net active service this period.

9.  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.

10.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  Based on his record of indiscipline, including instances of NJP, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an under other than honorable conditions discharge was normally appropriate for discharge under Army Regulation
635-200, chapter 14, it appears the applicant's command considered his overall record of service when he was separated with a general discharge.

4.  In view of the foregoing, there is an 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20120005790



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