IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120012385 


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, under honorable conditions discharge (GD).  

2.  The applicant states he was never given any type of counseling or rehabilitation prior to discharge.  He also claims he was told there would be a hearing to upgrade his discharge but he never received one.  

3.  The applicant provides no documentary evidence in support of his request. 

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 record shows the applicant enlisted in the Regular Army on 30 December 1992.  He was trained in and awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System Crewmember).  His record shows private first class/E-3 is the highest grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offense indicated:

   a.  4 May 1994, for being absent without leave on 2 May 1994; and 
   
   b.  29 December 1994, for being drunk on duty and for wrongfully consuming alcohol under the age of 21.  
   
4.  The applicant’s record also shows an extensive record of formal counseling by members of his chain of command for a myriad of duty performance and conduct related issues between 8 July 1993 and 8 May 1994.  Infractions for which he was counseled included the following:

* AWOL
* Room not prepared for inspection
* Indebtedness (multiple)
* Late to formations/failure to repair (multiple)
* Lack of effort on the job
* Drinking and driving
* Damaging equipment 
* Missing appointments
* Women in the barracks
* Poor appearance

5.  On 23 January 1995, the unit commander notified the applicant that action was being taken to initiate the applicant’s separation under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), by reason of unsatisfactory performance and that it was being recommended the applicant receive a GD.  The unit commander cited the numerous counseling received by the applicant for AWOL, failure to repair, indebtedness, violating visitation policy, and not meeting uniform appearance standards.  The unit commander also noted the numerous letters of indebtedness received on the applicant from creditors.  The unit commander informed the applicant he was recommending the applicant receive a GD.  

6.  On 23 January 1995, the applicant acknowledged receipt of the notification of separation action and consulted with legal counsel who advised him of the basis for the contemplated separation and its effects and of the rights available to him in connection with the action.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he waived his right to consulting counsel and elected not to submit statements in his own behalf.  

7.  On 24 January 1995, the separation authority approved the applicant’s separation for unsatisfactory performance and directed the applicant receive a GD.  On 30 January 1995, the applicant was discharged accordingly.  The 
DD Form 214 he was issued at the time shows he completed a total of 2 years,
1 month, and 1 day of creditable active military service.  

8.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations, or that he ever previously applied to this Board for an upgrade of his discharge.  

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

   a. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.  
   
   b.  Paragraph 3-7a of the same regulation provides that an HD 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 request to upgrade his discharge because he was never counseled or offered rehabilitation has been has been carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record reveals an extensive record of counseling by members of the applicant’s chain of command.  
2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His disciplinary history includes multiple incidents of less than satisfactory conduct and duty performance.  

3.  The applicant’s misconduct and poor duty performance clearly diminished the overall quality of his service below that meriting a fully HD.  As a result, his record did not support the issuance of an HD by the separation authority at the time and does not support an upgrade now.  The applicant is advised that there is no automatic entitlement to a discharge upgrade hearing.  At the request of an applicant, the ADRB or this Board may conduct a hearing to determine if the members’ overall record of service supports mitigates the discharge received and supports an upgrade.  Absent a request from the member no board automatically conducts a hearing or upgrade action on a 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)                                         AR20120012385



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ABCMR Record of Proceedings (cont)                                         AR20120012385



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