IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120012542 


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, in effect, that his general, under honorable conditions discharge (GD) be upgraded and that the narrative reason for his separation be changed.  

2.  The applicant states the reason for his discharge is documented as patterns of misconduct when in fact it was due to one incident of his refusing to obey an inappropriate order to clean a dumpster.  He claims as a result of his GD he is unable to obtain a good career.  

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 applicant enlisted in the Regular Army on 29 June 1983.  He was trained in and awarded military occupational specialty 95B (Military Police).  The record confirms he was advanced to the rank/grade of private (PV2)/E-2 on 
29 December 1983, and this is the highest rank/grade he attained while serving on active duty.

3.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions and extensive formal counseling by members of his chain of command for a myriad of disciplinary infractions.

4.  On 30 April 1984, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct - pattern of misconduct.  The unit commander specifically cited the applicant's pattern of misconduct consisting of discreditable incidents, both on and off duty and conduct which is prejudicial to good order and discipline within the U.S. Army as the basis for taking the contemplated separation.

5.  On 30 April 1984, the applicant consulted with legal counsel and he was advised of the basis for the separation action, its effects, and of the rights available to him.  The applicant elected not to submit statements in his own behalf.

6.  On 2 May 1984, the unit commander submitted the request for separation pertaining to the applicant and on 7 May 1984, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.  He directed the applicant receive a general discharge.  On 10 May 1984, the applicant was discharged accordingly.

7.  The DD Form 214 the applicant was issued at the time shows he held the rank/grade of Private/E-1 on the date of discharge and that he completed a total of 10 months and 12 days of creditable active service.  It further shows he earned the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Second Class Hand Grenade Badge.  

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

9.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct 
because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

10.  Paragraph 14-3 of the separation regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his general discharge to an honorable discharge and to change the narrative reason for separation because his discharge was based on one isolated incident has been carefully considered.  However, there is insufficient evidence to support his claim.  The evidence of record confirms the applicant had an extensive disciplinary history that included his acceptance of NJP on two separate occasions and extensive formal counseling by members of his chain of command for a myriad of disciplinary infractions.  Based on this disciplinary history, his separation by reason of misconduct-pattern of misconduct and the GD he received were appropriate and accurately reflected the overall character of his service.  

2.  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.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the applicant’s record of misconduct diminished his overall record of service below that meriting a fully honorable discharge.

3.  In view of the foregoing and absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary 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)                                         AR20120012542



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ABCMR Record of Proceedings (cont)                                         AR20120012542



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