IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011610 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states:

   a.  his discharge was a sign of immaturity years ago, but he has grown to become a man that the military would be proud to say was a part of the U.S. Army.  
   
   b.  he is the proud father of three teenagers, he has been married for 13 years, and he owns his own house.  He's living the American dream, but the lessons he learned from the past continue to make him want to clear his slate so things in his life can line up.
   
   c.  he would appreciate consideration in a positive manner so he can continue living his life in full.
   
3.  He provides 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 was born on 12 November 1968 and he enlisted in the Regular Army on 31 August 1989 at the age of 20 years old.  Upon completion of basic and advanced individual training, he was awarded military occupational specialty 62B (Construction Equipment Repairer).

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on two occasions for the following offenses:

* failing to go at the time prescribed to his appointed place of duty            (two specifications)
* disobeying a lawful command from his superior commissioned officer
* leaving his place of duty

4.  His service record indicates he received numerous adverse counseling statements for:

* failing to follow instructions
* missing physical training formation
* missing GI party
* failing to report for duty
* failing to turn in his linen
* failing to be at his appointed place of duty
* failing to be in the prescribed uniform for the 1st formation
* hitting a woman he lived with and having to go to court on 3rd degree assault
* breaking restriction

5.  On 17 August 1993, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  He was advised of his rights. 

6.  On 17 August 1993, he acknowledged notification of the separation action, consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving no less than an honorable discharge, and requested a personal appearance before an administrative separation board.  He did not submit statements in his own behalf.

7.  On 13 October 1993, he voluntarily waived consideration of his case by an administrative separation board.

8.  On 19 October 1993, the separation authority approved the separation action and directed the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense with a UOTHC discharge.  

9.  On 2 November 1993, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 4 years, 2 months, and 2 days active military service.  

10.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   a.  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 is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is 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.



   c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was 21 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

2.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

3.  His service record shows he received two Article 15s and numerous adverse counseling statements.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  A UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or an honorable discharge.  

6.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his request for an upgrade of his UOTHC discharge.

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)                                         AR20120011610





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ABCMR Record of Proceedings (cont)                                         AR20120011610



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