IN THE CASE OF:	  

		BOARD DATE:  4 January 2013

		DOCKET NUMBER:  AR20120011063 


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 upgrade of his discharge characterized as general under honorable conditions to honorable.

2.  He states he was offered an early release, but it was not explained to him that it would be under honorable conditions and would affect his Department of Veterans Affairs (VA) benefits.  He maintains the person who wrote his discharge disliked him and made his life a nightmare.  He cites incidents that occurred and opines that minor infractions were blown out of proportion.  He concludes he was under the impression he would be receiving his college benefits, but was notified that he lost his benefits because of the type of discharge he received.

3.  He provides a self-authored statement and 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 record shows he enlisted in the Regular Army on 10 July 1991.

3.  His record shows that between the period 27 March 1992 and 16 August 1993, he received 23 negative counseling statements in which he concurred with 21 of the statements.  The counseling statements were for the following infractions:

* failure to meet uniform standards
* failure to clean room
* lying to a noncommissioned officer
* failure to turn in his linen to the supply room
* separation from the service
* failure to follow a direct order
* poor personal hygiene
* unsatisfactory wall locker inspection
* failure to be at his appointed place of duty
* losing an M-17 Protective Mask

4.  On 7 October 1993, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of unsatisfactory performance.  He recommended that the applicant receive a general discharge.

5.  On 7 October 1993, he consulted with military counsel.  He stated that he was advised of the basis for the contemplated action to separate him for unsatisfactory performance, its effects, the rights available to him, and the effect of any action taken by him in waving his rights.  He requested to consult and be represented by counsel.  He elected not to submit statements on his behalf.

6.  He acknowledged he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  

7.  On 2 November 1993, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the applicant receive a general characterization of service.  Accordingly, he was discharged on 8 November 1993 with his service characterized as general, under honorable conditions.  He completed a total of 2 years, 3 months, and 29 days of total active service.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

9.  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 contention, in effect, that his discharge should be upgraded so he can receive VA education benefits was considered.  However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  He was afforded the opportunity to consult with legal counsel and to provide a statement in his own behalf.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Based on the fact that his record of indiscipline includes numerous counseling statements for a number of infractions, his overall record of service did not support the issuance of a fully honorable discharge at the time and it does not support an upgrade of his discharge now.

4.  In view of the foregoing, there is no basis for granting 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)                                         AR20120011063





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ABCMR Record of Proceedings (cont)                                         AR20120011063



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