IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120011235 


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 a fully honorable discharge.

2.  The applicant states he believes his discharge was due to personal issues regarding his first spouse.  He caught her cheating on him and this caused him to be distraught and led to his misconduct.  However, since discharge, he has been blessed with a wonderful daughter (currently serving in Afghanistan) and his life has been rehabilitated.  He has a steady job, a wonderful family, and he is a productive member of his community.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Four character reference letters/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's records show he enlisted in the Regular Army on 19 July 1979 and he held military occupational specialty 43E (Parachute Rigger).  He served through a reenlistment and he attained the rank/grade of specialist four/E-4.

3.  He was assigned to the U.S. Army Airborne Brigade, Fort Bragg, NC.  He was awarded or authorized the:

* Army Service Ribbon
* Parachutist Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Army Good Conduct Medal
* Noncommissioned Officer Professional Development Ribbon w/Numeral 2
* Army Achievement Medal
* Drivers Badge
* Mechanic Badge

4.  His records contain an extensive history of negative counseling regarding writing bad/dishonored checks, issuing checks without sufficient funds, and receiving multiple letters of indebtedness.

5.  On 20 September 1982, he received a letter of reprimand for having issued 4 checks without sufficient funds.  

6.  On 26 March 1984, he was arrested by civil authorities and taken to the city jail in Darlington, SC, pending disposition of civilian charges of driving under the influence of alcohol (DUI).  

7.  On 2 July 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for writing a dishonored check.  

8.  On 2 August 1984, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for misconduct – pattern of misconduct.  The specific reasons were cited as the applicant's history of bad checks, letters of indebtedness, continuing problems with civil or military authorities, DUI, and poor potential for advancement or leadership.  He recommended a general discharge.

9.  On 7 August 1984, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He acknowledged his understanding that if he had less than 6 years of total service and had been recommended for separation with an under other than honorable conditions discharge, he was not entitled to a separation board.  He also elected not to submit statements on his own behalf.  He indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

10.  On 9 August 1984, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 due to misconduct – pattern of misconduct.  The intermediate commander recommended approval of the discharge.  

11.  On 10 August 1984, consistent with the chain of command's recommendations, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct and directed issuance of a General Discharge Certificate.

12.  The applicant was discharged on 17 August 1984.  The DD Form 214 he was issued confirms he was discharged by reason of misconduct - pattern of misconduct under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under honorable conditions (general).  This form further confirms he completed 5 years and 26 days of creditable active military service during this period.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  He submitted four character reference letters and/or letters of support from a pastor, a friend, and two retired military members who know him.  The authors comment on the applicant's competency, organization, efficiency, and involvement in the community and church.  

15.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.

16.  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 evidence of record shows the applicant exhibited a pattern of misconduct ranging from writing bad/dishonored checks to being arrested and confined by civil authorities for a DUI.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his pattern of misconduct.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering that the issuance of a discharge under other than honorable conditions is normally appropriate in such cases, his discharge under honorable conditions was highly favorable given all the facts of the case.

3.  His post-service achievements and the character reference letters he provides were noted.  However, his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to 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)                                         AR20120011235





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011235



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1