IN THE CASE OF:	  

		BOARD DATE:  31 January 2013

		DOCKET NUMBER:  AR20120019530 


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, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* Upon leaving Korea, he was assigned to Company B, 3rd Forward Support Company, Fort Stewart, GA
* He was unaware that he was assigned to B Company and attached to Headquarters and Headquarters Detachment
* He requested a psychiatric evaluation but never received one
* When he went through the separation process he was led to believe only E-5s and above were entitled to talk to a lawyer
* He is not looking for any compensation; he is only looking for the truth
* He was never given a copy of his chapter packet 

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.  As a matter of clarity:

	a.  The applicant requests a review of the chapter he received in 1997.  This is a function of the Army Discharge Review (ADRB).  There is no indication he applied to the ADRB for a review of his discharge within that board’s 15-year statute of limitations.  Although he did not specify what records correction he seeks, this case is being considered as a request for an upgrade.

	b.  The applicant's official records do not contain his separation packet or his DD Form 214.  However, he provides sufficient documents (DD Form 214 and an argument) for the Board to conduct a fair and impartial review of this case.

3.  The applicant's records show he enlisted in the Regular Army on 11 January 1995.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 52C (Utility Equipment Repairer).  

4.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 25 February 1997 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct, in the rank/grade of private first class/E-3 with an under honorable conditions (general) characterization of service.  This form also shows he completed a total of 2 years, 1 month, and 15 days of creditable active service during this period.  He was issued Separation Code "JKN" which stands for “pattern of misconduct.”

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

7.  Army Regulation 635-200, 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.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 25 February 1997 under the provisions of chapter 14 of Army Regulation 635-200 for misconduct – pattern of misconduct with an under honorable conditions characterization of service.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

3.  Based on his record of indiscipline, his service does not appear to have met the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient evidence to upgrade his discharge to a fully honorable discharge.

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)                                         AR20120019530





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ABCMR Record of Proceedings (cont)                                         AR20120019530



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