IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120010113 


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, in effect, his general discharge be upgraded to honorable.

2.  The applicant does not provide an explanation. 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 8 October 1985 for a period of 3 years.  He completed his training and was awarded military occupational specialty 94B (food service specialist). 

3.  Between 7 May 1986 and 14 July 1986, he was counseled for:

* Lack of job concern and motivation
* failure to follow a lawful order
* insubordinate conduct and disobeying a lawful order
* tardiness
* lack of motivation

4.  On 2 June 1986, nonjudicial punishment (NJP) was imposed against him for committing an indecent assault upon a private first class with intent to gratify his lust or sexual desires by entering the latrine designated for females and staring at her while she was taking a shower.

5.  On 14 July 1986, his unit commander requested summary court-martial charges be preferred against the applicant for leaving his appointed place of duty without authority, disobeying a lawful order, and dereliction in the performance of his duties.   

6.  On 5 August 1986, he was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  The unit commander cited his Article 15, pending court-martial charges, and counseling statements.

7.  On 5 August 1986, he consulted with counsel, waived his rights, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.

8.  On 25 August 1986, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  On 2 September 1986, he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 10 months and 25 days of creditable active service.

10.  There is no evidence the applicant 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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

12.  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 applicant's brief record of service included numerous adverse counseling statements, one NJP for committing indecent assault upon a female Soldier, and various charges for which a summary court-martial was recommended.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

3.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no 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)                                         AR20120010113





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ABCMR Record of Proceedings (cont)                                         AR20120010113



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