IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012303 


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 his general discharge be upgraded to honorable.

2.  He states his civilian conviction was alcohol related and it was his only charge.  He explains he pled guilty and was punished by civilian authorities.  When he returned to duty he was discharged.  He adds that he was young, made a mistake, and regrets his actions.  He states that he has learned from his mistakes and has cleaned up his act since leaving the Army.

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 enlisted in the Regular Army on 5 October 1983.  He was 
18 years old at the time of enlistment.

3.  His disciplinary history includes two General Officer Memoranda of Reprimand imposed on 24 February and 8 December 1987 for driving while under the influence of intoxicating liquor.  Additionally, he received adverse counseling statements for the following infractions on:

* 7 January 1987 for missing opening formation and first class period
* 27 April 1987 for being late for formation on 22 and 24 April 1987
* 28 April 1987 for failure to report to physical training on 22 and 24 April 1987
* 18 November 1987 for indebtedness

4.  On 2 February 1988, the unit commander notified the applicant of his intent to recommend him for separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-5.  Specifically, he listed the applicant's conviction by civil authorities for driving under the influence of alcohol and for missing formation, writing dishonored checks, and an incident of being disrespectful as justification for the discharge action.  On 5 February 1988, the applicant acknowledged receipt of the letter of notification.

5.  On 10 February 1988, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board and to consult with and be represented by counsel.  He elected not to submit statements on his behalf.  

6.  He acknowledged that he understood he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged he understood that a the result of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He acknowledged he 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.  He also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 26 February 1988, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14-5a with a General Discharge Certificate. 

8.  His DD Form 214 shows he was discharged on 7 March 1988 under the provisions of Army Regulation 635-200, chapter 14, for civilian conviction with a characterization of service of general under honorable conditions.  He was credited with completing 4 years, 3 months, and 5 days of active service with lost time from 1 December 1987 to 29 January 1988.

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

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

   a.  Chapter 14-5 establishes policy and prescribes procedures for separating members for conviction by civil court.  The regulation states that a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present:  A punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  
   
   b.  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 available records show the applicant was 18 years old at the time of enlistment and 22 years old at the time of discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, age is not sufficient as a basis for upgrading his discharge.




2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20120012303



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ABCMR Record of Proceedings (cont)                                         AR20120012303



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