IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012520 


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.  The applicant states he:

* was young and immature when he was in the Army
* has matured since the Army
* does not think the mistakes he made when he was younger should cause him problems at this stage in his life

3.  The applicant provides:

* Character reference letter
* Certificates of training/completion

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 7 January 1971.  He enlisted in the Regular Army on 28 March 1990 for a period of 4 years.  He completed his training and was awarded military occupational specialty 13B (cannon crewmember).

3.  Between August 1990 and March 1991, he was counseled for:

* Being dismissed from school
* Attitude problems
* Falling asleep on guard
* Uniform and appearance
* Conduct off duty
* Tardiness
* Poor job performance

4.  In October 1990, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order and using disrespectful language.

5.  In November 1990, NJP was imposed against him for drunk and disorderly conduct.

6.  On 21 December 1990, he was convicted by a summary court-martial of failing to repair (two specifications).

7.  In February 1991, NJP was imposed against him for being derelict in the performance of his duties.

8.  On 27 March 1991, he was notified of his pending separation for misconduct (patterns of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b.  The unit commander cited his:

* serious pattern of misconduct
* 3 Article 15s
* summary court-martial

9.  On 28 March 1991, he consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement on his own behalf but his statement is not available..

10.  The separation authority action is not available.
11.  Discharge orders show he was discharged under honorable conditions (general) on 3 June 1991  under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (patterns of misconduct).  He completed a total of 1 year, 2 months, and 6 days of creditable active service.

12.  He provided a character reference letter from a medical supervisor who attests:

* He completed his externship program for a total of 120 hours
* He was punctual, conscientious, and dedicated to his responsibilities
* He was well liked by all patients and co-workers

13.  He also provided various certificates of training and completion he earned subsequent to his discharge.

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

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 (military or civilian 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 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 applicant contends he was young and immature when he was in the Army.  However, age is not a sufficiently mitigating factor.  He was age 19 when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  
2.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  His post-service accomplishments are commendable.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  His record of service included adverse counseling statements, three NJPs, and one summary court-martial.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120012520





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ABCMR Record of Proceedings (cont)                                         AR20120012520



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