BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120008698 


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 his general discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states since his discharge he has been a model citizen and has remained employed.  He states he is making this request because his GD is limiting him to entry level positions and preventing advancement with his company.  

3.  The applicant provides no documentary evidence in support of his request.  

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 Regular Army on 29 September 1987.  He was trained in and awarded military occupational specialty 94B (Food Service Specialist), and private first class (PFC)/E-3 is the highest rank he attained while serving on active duty.  

3.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 17 January 1990, for failure to be at his appointed place of duty at the time prescribed.  It also includes extensive formal counseling by members of his chain of command for a myriad of conduct and performance related issues between May 1989 and January 1990.  

4.  On 20 December 1989, a summary court-martial (SCM) found the applicant guilty of violating Article 112 of the UCMJ by being drunk on duty.  The resulting sentence included a reduction to private/E-2.  

5.  On 29 January 1990, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct – commission of a serious offense.  The unit commander specifically cited the applicant's SCM conviction for being drunk on duty as the basis for taking the action.  He also indicated that all other attempts to rehabilitate the applicant had failed and that he was recommending a GD.  

6.  On 31 January 1990, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  

7.  On 5 February 1990, the unit commander submitted the request for separation pertaining to the applicant and on 8 February 1990, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.  He directed the applicant receive a GD, and on 14 February 1990, the applicant was discharged accordingly.

8.  The DD Form 214 the applicant was issued at the time shows he held the rank/grade of PV2/E-2 on the date of discharge and that he completed a total of 2 years, 4 months, and 16 days of creditable active service.  It further shows he earned the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, Overseas Service Ribbon, and Air Assault Badge.  
9.  There is no evidence indicating 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 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct 
because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of the separation regulation above contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his GD to an HD based on his post-service conduct so that his employment opportunities may be improved has been carefully considered.  However, while his post-service conduct as he represents it is noteworthy, employment opportunities alone are not bases for an upgrade of a discharge.  

2.  The applicant had an extensive disciplinary history that included his acceptance of NJP, formal counseling for a myriad of disciplinary infractions, and an SCM conviction. 

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  While the applicant’s overall record of service was generally acceptable, his misconduct clearly diminished his overall record of service below that meriting a full HD.


5.  In view of the foregoing and absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary 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)                                         AR20120008698



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ABCMR Record of Proceedings (cont)                                         AR20120008698



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