IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120017017 


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 (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states:

	a.  His GD is inequitable because it was based on an isolated event that happened while he was off duty.

	b.  Upon leaving the club one winter night while serving in Germany, he attempted to retrieve his jacket from the coat attendant.  Unable to locate his jacket, the coat attendant recommended he just take a similar jacket because people often mistakenly take the wrong jacket.  Given that it was very cold, he followed the coat attendant's advice and took a similar coat and wore it back to his room.

	c.  He was apprehended by the local police a week later when he was seen wearing the coat.  He was subsequently discharged from the Army within 2 months for this single offense, which was far from his character.

	d.  He takes full responsibility for his actions, is deeply apologetic for the choice he made, and wants his GD upgraded to an HD to allow him to enlist in the U.S. Army Reserve and receive benefits.

3.  The applicant provides:

* self-authored statement
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)

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 military records show he enlisted in the Regular Army on 20 August 1987 in the rank of private/E-2 after having prior military service in the U.S. Army Reserve.  He held military occupational specialty 91A (Medical Specialist).

3.  His records show he was formally counseled 16 times during the period 2 December 1987 to 29 August 1988 for a myriad of disciplinary infractions that included:

* failing to report to assistant charge of quarters duty
* failing to report to sick call on time
* breaking restriction
* writing bad checks
* substandard performance (four times)
* failing to secure personal property
* failing to report to work call on time (four times)
* failing to report to physical training formation on time
* failing to report for inspection on time
* repeated loss of identification cards

4.  The applicant's records show he accepted nonjudicial punishment (NJP) three times under the provisions of Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses:

* 15 September 1987 – disobeying a lawful order issued by his superior commissioned officer on 1 September 1987
* 6 January 1988 – unlawfully striking another Soldier in the rank of private first class/E-3 in the face with his fist on 23 November 1987 and for breaking restriction on 6 December 1987
* 25 October 1988 – for stealing a black leather jacket on or about 3 July 1988

5.  On 17 October 1988, the unit commander notified the applicant that he was initiating action to separate him under honorable conditions under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The commander stated the following as the basis for the separation action:

	a.  in spite of counseling, the applicant continued to miss formations, arrive to work late, write bad checks, and disregard those persons in position of authority; and

	b.  he committed an assault upon another Soldier, compromising his integrity as a medic.

6.  On 25 October 1988, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to request consulting counsel and to submit a statement in his own behalf.  However, this statement in not included in his records.

7.  On 18 November 1988, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a GD.

8.  On 6 December 1988, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

9.  On 12 December 1988, the applicant was discharged from the Army.  His DD Form 214 shows he was discharged under honorable conditions (general) by reason of "misconduct – serious offense" under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 1 year, 3 months, and 23 days of creditable active duty service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An HD or a GD may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.

	b.  Paragraph 3-7a provides that an HD 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 his GD should be upgraded because it resulted from an isolated event which took place while he was off duty.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's disciplinary history includes a court-martial conviction, 3 NJP's, and 16 counseling statements for a myriad of infractions.  Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD.

3.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

____X____  ____X_ _  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20120017017



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ABCMR Record of Proceedings (cont)                                         AR20120017017



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