IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009858 


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 his service was honorable and he would like an upgrade of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  He provides five letters of support.

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 for a period of 3 years on 2 March 1987.  Upon completion of one station unit training at Fort Sill, OK, he was awarded military occupational specialty 13B (Cannon Crewmember).  
3.  His disciplinary history includes:  

	a.  a General Officer Memorandum of Reprimand (GOMOR), dated 5 April 1988, that shows he was arrested for suspicion of driving while impaired by the Cumberland County Sheriff's Department, NC;

	b.  a company grade Letter of Reprimand (LOR), undated, that shows he was involved in an altercation with a noncommissioned officer (NCO).  An alleged assault could not be proven; however, the applicant failed to obey the orders of an NCO; and 

	c.  three nonjudicial punishments under Article 15, Uniform Code of Military Justice for failing to obey a lawful order, breaking restriction, and violating a lawful general regulation.

4.  His service record contains two DA Forms 4187 (Personnel Action) that indicate he was confined by civilian authorities from 25 July to 1 August 1988.

5.  On 14 October 1988, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for misconduct with a general discharge.  The company commander indicated there were numerous attempts made through counseling to correct the applicant's deficiencies.  He was advised of his rights.  He acknowledged receipt of the proposed separation action on the same date.  

6.  He was advised by consulting counsel of the basis for the contemplated action and its effects, of the rights available to him, and of the effect taken by him to waive his rights.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of no less than general under honorable conditions and requested a personal appearance before an administrative separation board.  He elected not to submit statements in his own behalf.

7.  On 19 October 1988, the separation authority waived rehabilitative requirements and approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct - patterns of misconduct with the issuance of a General Discharge Certificate.

8.  On 3 November 1988, he was discharged accordingly.  He completed 1 year, 7 months, and 24 days of creditable active service with 7 days of time lost.

9.  He provided five letters of support from friends and family members.  They attest that the applicant has a drinking problem and needs rehabilitation and medical treatment.  

10.  The applicant's service record is void of evidence which indicates he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

11.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 established policy and prescribed 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 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.

	b.  Paragraph 3-7a states 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 contends his service was honorable.  However, his service record shows he received three Article 15s, a GOMOR, an LOR, and adverse counseling statements.  In addition, he was confined by civil authorizes for
7 days.

2.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.  Although an under other than honorable conditions discharge was normally appropriate for the authority and reason for his discharge, it appears his chain of command and final approval authority considered his overall record of service, resulting in the issuance of a general discharge.

4.  The applicant's letters of support were considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

5.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants upgrading his general discharge to an honorable.

6.  In view of the foregoing, 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)                                         AR20120009858



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ABCMR Record of Proceedings (cont)                                         AR20120009858



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