IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120012574 


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 be upgraded to an honorable discharge.  He also requests, in effect, to appear before the Board if an error requires an explanation or if his side needs to be heard or explained.

2.  The applicant states, in effect, he does not believe there is any evidence to support the alleged misconduct against him.  There is a statement listing his misconduct but there is no proof or evidence of his misconduct to include nonjudicial punishment (NJP) or disciplinary action taken against him.  He further states he does not believe his DD Form 214 is legally right.  He should not be shown prejudice in either of his recently acquired skilled trades, civilian life, or the military.  He states he believes he was an upstanding, honest, determined, and respectful person when he was in the service and he is the same person now.  

3.  The applicant provides a one-page document that appears to have been related to his separation processing documents.

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 majority of the applicant’s military records are not available to the Board for review with this case.  This case is being considered using his DD Form 214 (Certificate of Release or Discharge from Active Duty), discharge orders, Army Discharge Review Board (ADRB) Case Report and Directive, and his separation packet which is a part of the ADRB file.

3.  The available evidence shows he enlisted in the Regular Army on 16 August 2005.  He completed training and was awarded military occupational specialty (92W) Water Treatment Specialist.  The highest rank he achieved was private first class/E-3.

4.  On 23 October 2006, the applicant's unit commander notified the applicant of initiation of separation action against him under the provision of Chapter 14, paragraph 14-12b, Army Regulation 635-200, by reason of a pattern of misconduct, with a general discharge.  The unit commander cited as the basis for the recommendation the applicant disobeying and disrespecting both an officer and a noncommissioned officer, failing to report to his place of duty on several occasions, and forging a sick call slip.  

5.  On 23 October 2006, the applicant consulted with legal counsel and he was advised of the impact of the discharge action and the rights available to him.  The applicant submitted a statement on his own behalf, which is not available.  The unit commander subsequently recommended separation from the Army and a waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed separation action and recommended approval with the issuance of a general discharge.

6.  On 25 October 2006, the separation authority waived further rehabilitative efforts and directed the issuance of a general discharge.

7.  Accordingly, on 8 November 2006, the applicant was discharged.  The 
DD Form 214 he was issued at the time confirms he was discharged under the provisions of chapter 14, paragraph 14-12b, Army Regulation 635-200, by reason of misconduct (minor infractions) with service characterized as under honorable conditions (general).  This form further confirms he completed a total of 2 years, 2 months, and 23 days of creditable active military service with no recorded lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed 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.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

   a.  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.

   b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 provides that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not provide any evidence that shows his discharge was unjust and or unfair.

2.  The available evidence shows the applicant petitioned the ADRB for an upgrade of his discharge and his request was denied.  The available evidence also shows the applicant was notified by his commander of his intention to separate him from the Army and of the bases for the separation action.  The applicant consulted with legal counsel and he was advised of the impact of the discharge action and his rights.

3.  Therefore, it appears the applicant's rights were protected throughout the separation process and the applicant has provided no evidence to the contrary.  

4.  The absence of nonjudicial punishment or court-martial action is not sufficient to warrant an upgrade of his discharge.  It appears the applicant continued to commit minor offenses which contributed to his discharge action.  The applicant is not entitled to an honorable discharge.

5.  As a matter of information, formal hearings and personal appearance before the ABCMR are not rights and are only necessary when it is determined by the Director of ABCMR to be necessary in the interest of justice.  In this case, the available evidence was sufficient for the ABCMR to arrive at a fair and impartial decision.  

6.  In view of the foregoing, there is no 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)                                         AR20120012574



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ABCMR Record of Proceedings (cont)                                         AR20120012574



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