IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120007436 


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 an upgrade of his general discharge under honorable conditions to fully honorable.

2.  He states:

* he was young and thought he was in love
* he's been trying to make up for his mistake 
* he has been in the fire service for 15-plus years and has been working for companies providing fire protection in Iraq and Afghanistan
* he's embarrassed by his type of discharge
* he gained weight to get out of the service because of the stress of his now ex-wife

3.  He provides no additional evidence.

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 was born on 19 June 1965 and he enlisted in the Regular Army on 26 June 1984 at 19 years of age.  Upon completion of one-station unit training, he was awarded military occupational specialty 95B (Military Policeman).

3.  A review of his service record revealed derogatory information which shows:

	a.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 5 June 1987 for four specifications of failing to go at the time prescribed to his place of duty.

	b.  He was convicted by a special court-martial on 17 September 1987 of five specifications of a bomb hoax.

	c.  He received adverse counseling statements between February 1986 and November 1987 for withdrawing from the E-4 selection board, duty performance, failing to make weekly weigh in, missing a dental appointment, failing to pass the Army Physical Fitness Test, failing to obey a lawful order, and uttering worthless checks off post.

4.  On 4 November 1987, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance.  He was advised of his rights.  He waived his right to consult with legal counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

5.  On 5 November 1987, the separation authority waived a rehabilitation transfer and directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with service characterized as general under honorable conditions.

6.  On 12 November 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 3 years, 4 months, and 17 days of active military service.

7.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	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.  Records show the applicant was 22 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  His contentions regarding his post-service achievements and conduct while providing fire protection for companies for over 15 years are acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  His statement regarding gaining weight due to stress related to his ex-wife is also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and characterized his service as general under honorable conditions.  He has not presented sufficient evidence which warrants changing his general discharge to a fully honorable discharge.

6.  The evidence of record does not indicate the actions taken against him were in error or unjust.  Therefore, there is no basis for granting his request.

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 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)                                         AR20120007436



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ABCMR Record of Proceedings (cont)                                         AR20120007436



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