IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008189 


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.  He states that he was suffering from service-connected post-traumatic stress disorder (PTSD) which could have contributed to the last incident to cause his separation.  At the time of discharge he was not fully aware of the process or possible outcome of the separation.  He did not feel like he was adequately informed before the process was agreed upon.

3.  He provides a copy of 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's military records show he enlisted in the Delayed Entry Program on 23 July 2004.  He enlisted in the Regular Army, in pay grade E-1, on 10 August 2004, for 3 years.  He completed training and was awarded military occupational specialty 13F (Fire Support Specialist).  He was advanced to pay grade E-2 on 10 February 2005.

3.  A DA Form 4187 (Personnel Action), dated 21 November 2005, shows he was reduced to pay grade E-1 with an effective date of 15 August 2005 for misconduct.

4.  The applicant arrived in Iraq on 11 September 2005.

5.  On 4 May 2006, the applicant’s unit commander advised the applicant that he was initiating action to separate the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct, with a general discharge.  The unit commander stated the reasons for the proposed separation action were the applicant's failure to pay debts on three different occasions, disrespecting a noncommissioned officer, stealing a check, and failure to report to his appointed place of duty.  He advised the applicant of his rights.

6.  On 10 May 2006, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action under Army Regulation 635-200, paragraph 14-12b for patterns of misconduct.  He acknowledged he understood its effects and the rights available to him.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 11 May 2006, the applicant’s unit and battalion commanders recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, with a general discharge.  

8.  On 20 May 2006, the separation authority approved the applicant's recommendation for discharge and directed a general discharge.

9.  The applicant departed Iraq on 8 June 2006.

10.  On 26 July 2006, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct, with a general discharge.  He was credited with completing 1 year, 11 months, and 17 days of net active service and he had no recorded lost time.
11.  On 20 September 2007, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes 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.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  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 is merited by the Soldier’s overall record.

13.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 4 May 2006 the applicant's unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct, with a general discharge.  The unit commander stated the reason for the separation action were the applicant's failure to pay debts on three different occasions, disrespecting a noncommissioned officer, stealing a check, and failure to report to his appointed place of duty.  The applicant was advised of his rights.

2.  After consulting with legal counsel, the applicant acknowledged he understood the impact of the discharge action and elected not to submit a statement in his own behalf.  The unit and battalion commanders subsequently recommended the applicant's separation.  The separation authority approved his separation action and he was discharged accordingly on 26 July 2006.

3.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

4.  His contentions have been noted; however, he has provided no evidence or a convincing argument to show his discharge should be changed to an honorable discharge.  There is an absence of evidence to support his statement that he was suffering from PTSD during the period of his active duty from 2004 to 2006 which prevented his satisfactory completion of service.  In addition, his pattern of misconduct started before he arrived in Iraq.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge.  He was properly discharged and he has not shown otherwise.

5.  Absent evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

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)                                         AR20120008189



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ABCMR Record of Proceedings (cont)                                         AR20120008189



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