IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012435 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he desires this upgrade in order to be eligible for veterans benefits.

3.  The applicant provides no additional evidence.

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 22 August 1989.  Upon completion of initial entry training, he was awarded military occupational specialty 13F (Fire Support Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his separation he held the rank/grade of private (PV1)/E-1.

3.  On 28 November 1990, the applicant appeared before a summary court-martial wherein he both pleaded guilty and was found guilty of the following offenses in violation of the Uniform Code of Military Justice (UCMJ) for the Articles shown:

	a.  Charge I, Article 90 for willfully disobeying a commissioned officer; and

	b.  Charge II, Article 121 for wrongful appropriation.

4.  As a result, the following sentence was adjudged on 28 November 1990:

* Reduction to the rank/grade of PV1/E-1
* 30 days confinement
* Forfeiture of $622 pay per month

5.  The applicant was confined by military authorities from 28 November to 21 December 1990.

6.  The applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct - commission of a serious offense; specifically, his conviction by a summary court-martial of willfully disobeying a commissioned officer and wrongful appropriation.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and requested consulting counsel and to be provided a copy of his separation packet.

7.  He was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He declined the opportunity to consult with either military or civilian legal counsel.  He elected not to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.
8.  The unit commander subsequently recommended that the applicant be separated from the service based on his commission of a serious offense with a general discharge under honorable conditions.

9.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14, for misconduct - commission of a serious offense.  He determined his service would be characterized as under honorable conditions and that he would be issued a General Discharge Certificate.

10.  On 10 July 1991, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* his service was characterized as under honorable conditions
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* his narrative reason for separation was "Misconduct-Commission of a serious offense"

11.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  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 discharge under other than honorable conditions 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.

13.  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 that his record should be corrected by upgrading his discharge to an honorable discharge was carefully considered.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge.

4.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

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 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)                                         AR20120012435





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ABCMR Record of Proceedings (cont)                                         AR20120012435



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