IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120018249 


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.  The applicant states:

* he apologizes for his inappropriate behavior leading to his discharge
* he considers himself a true professional who learned from his mistakes
* he was a good Soldier who has learned to control his emotions and take the path of true leadership vice the easy road

3.  The applicant provides his DD Form 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.  With prior enlisted service, the applicant enlisted in the Regular Army (RA) on 30 September 1992 for a period of 3 years.  He completed training and he was awarded military occupational specialty 12B (combat engineer).

3.  The applicant's record contains a State of Texas judgment against him, dated
7 February 1995, that shows he was convicted of forgery that was committed on 4 February 1995.  His offense was reduced to a Class A misdemeanor at the request of the prosecuting attorney.  As a result, he was sentenced to 1 year probation and a $500.00 fine.

4.  On 20 June 1995, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct – commission of a serious offense.  The reason for the proposed action was his conviction for forgery.  The commander advised the applicant that he was being recommended for a general discharge.

5.  On the same date, the applicant acknowledged receipt of the proposed separation action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

6.  As such, his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for forgery on
4 February 1995.  The commander also recommended waiver of the rehabilitative requirements.

7.  On 27 June 1995, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a General Discharge Certificate.

8.  On 21 July 1995, he was discharged accordingly.  He completed 2 years, 
9 months, and 15 days of net active service this period.

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


10.  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 members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  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 considered appropriate.

	b.  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.  Evidence of record shows the applicant was convicted in civilian court of forgery.  As a result of his civil conviction, he was recommended for and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  Although an under other than honorable conditions discharge was normally warranted for separation for misconduct, it appears his chain of command considered his overall service when he was recommended for and subsequently approved for separation with a general discharge.

3.  His post-service conduct is noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.

4.  In view of the foregoing, 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)                                         AR20120018249



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ABCMR Record of Proceedings (cont)                                         AR20120018249



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