IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120013075 


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 upgrade of his general discharge to an honorable discharge.

2.  He states he was unfairly given a general discharge.  He was late for three 0630 hour formations between December 1991 and February 1992.  This was due to the severity of his depression from learning that his son was stillborn.  He was not in any condition to fight this at the time and just did what he was told.  He never received any medical evaluation.  The exit physical examination psychiatrist told him to stay in the Army so he could get treatment.  He should have received treatment for his depression and not been punished.  He was too depressed to even realize he needed treatment.

3.  He 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 enlisted in the Regular Army, in pay grade E-1, on 2 February 1989, for a period of 4 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He served in Southwest Asia from 18 August 1990 through 2 April 1991.  He was promoted to pay grade E-4 on 2 April 1991.

3.  On 12 September 1991, a DA Form 268 (Report to Suspend Favorable Actions (FLAG)) was initiated against the applicant for adverse action.

4.  On 31 October 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty (0630 hour physical training (PT) formation) on 28 October 1991.

5.  He received negative counseling between October 1991 and January 1992 for:

* job performance, personal appearance, and PT
* being late for duty
* payment of just debts
* missing two 0630 hour formations

6.  On 22 January 1992, he again accepted NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty (0630 hour PT formation) on 13 January 1992.  

7.  On 31 January 1991, a second DA Form 268 was initiated against him for adverse action.

8.  On 10 February 1992, the applicant's company commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, paragraph 14-12b for misconduct - pattern of misconduct, with a general discharge.  The commander stated the applicant had received many bad counseling statements that showed he could not be a productive member of the Army.  He advised the applicant of his rights.

9.  On 13 February 1992, after consulting with counsel, the applicant acknowledged the proposed separation action.  He acknowledged he could receive a general discharge and the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

10.  The applicant's company commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b.  The reason for the recommended action was the applicant received two Article 15 actions, both for failing to go at the time prescribed to his appointed place of duty.  He also received many bad counseling statements.  The commander determined the applicant could not be a productive member of the Army.  He further stated the applicant's mental and medical evaluations were attached to his separation packet.

11.  The applicant's battalion commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b with a General Discharge Certificate.

12.  On 19 February 1992, the separation authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b for patterns of misconduct with the issuance of a General Discharge Certificate.

13.  On 28 February 1992, he was discharged accordingly in the rank/grade of private first class (PFC)/E-3.  He completed 3 years and 27 days of creditable active service with no time lost.

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 set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.
	b.  Paragraph 3-7a specified an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged due to a pattern of misconduct based on his job performance, personal appearance, and PT.  He also accepted two Article 15s for missing formation.  His company commander stated that the applicant's pattern of misconduct indicated he could not become a productive member of the Army.  His separation action was approved and he was discharged accordingly on 28 February 1992 with a general discharge.

2.  His company commander also noted his mental and medical evaluations were attached to his separation packet.  His record is void of those documents; however, there is no evidence of record and he provided none to show any mental or medical condition prevented his satisfactory completion of his enlistment.

3.  The evidence of record shows he was well aware of the reasons for his discharge at the time he was separated.  A discharge under other than honorable conditions was normally appropriate.  However, it appears his chain of command considered his overall record when he was issued a General Discharge Certificate.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge.  

4.  His administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  Therefore, 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)                                         AR20120013075



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ABCMR Record of Proceedings (cont)                                         AR20120013075



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