BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120007597 


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 to an honorable discharge.

2.  The applicant states he was separated for a serious misconduct offense for which he had already received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) and he had returned to duty.  This has had a detrimental effect on his life as he is a paramedic and he has been limited to non-municipal jobs due to the character of his service.

3.  The applicant 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's records show he enlisted in the Regular Army on 25 February 1988 and he held military occupational specialty 95B (Military Police (MP)).  He was assigned to the 194th MP Company, Germany, on 16 May 1988.

3.  On 14 September 1989, he received NJP under the provisions of Article 15, UCMJ, for the following:

* failing to obey a lawful order from a noncommissioned officer (NCO) on two occasions
* being disrespectful in deportment toward an NCO in the execution of his duties
* wrongfully damaging the property of a German firm
* being drunk and disorderly

4.  On 19 December 1989, he was notified by his immediate commander of the commander's intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for serious misconduct with a general discharge.  The commander stated this was for disobeying lawful orders from NCOs on three separate occasions, being disrespectful towards NCOs on two different occasions, wrongfully damaging the property of a German firm, and being drunk and disorderly.  

5.  On 19 December 1989, the applicant acknowledged receipt of the proposed discharge action and that he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter substantial prejudice in civilian life.  He waived his right to counsel and did not submit statements in his own behalf. 

6.  On 20 December 1989, his senior commander recommended approval of his separation action with a general discharge.

7.  On 3 January 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, for serious misconduct with the issuance of a General Discharge Certificate.  On 17 January 1990, he was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct  - commission of a serious offense with an under honorable conditions characterization of service.  He completed 1 year, 10 months, and 23 days of net active service.

9.  There is no indication he 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.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, an MP, received NJP for disobeying lawful orders, being disrespectful toward NCOs, wrongfully damaging the property of a German firm, and being drunk and disorderly.  Accordingly, his immediate commander initiated separation action against him.  

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

3.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for employment or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his overall record, it is clear the applicant's service did not meet the standards of acceptable conduct for Army personnel that would warrant an honorable discharge.  Therefore, he is not entitled to the 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)                                         AR20120007597



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ABCMR Record of Proceedings (cont)                                         AR20120007597



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