IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120019733 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states he completed his first enlistment.  He made a wrong choice and needs an honorable discharge in order to obtain employment and to enlist in the U.S. Army Reserve.

3.  The applicant 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.  On 26 June 1992, the applicant enlisted in the Regular Army for a period of 
3 years.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest pay grade held was specialist four/E-4.  He was honorably discharged on 9 March 1995 and immediately reenlisted on 10 March 1995.

3.  His record shows the applicant was counseled on numerous occasions for failure to follow instructions, failure to pay debts, uniform violations, and poor performance.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* failure to go to his appointed place of duty on 16 June 1996
* breaking restriction on 6 July 1996

4.  On 5 August 1996, the applicant's commander notified the applicant of his intention to recommend him for separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The commander cited the applicant's numerous acts of misconduct to include failure to report to his appointed place of duty, breaking restriction, repeated failure to maintain financial accountability and pay just debts, failure to follow instructions from his chain of command, and poor to marginal duty performance as the bases for his recommendation.

5.  On the same date, he acknowledged receipt of the commander's notification.  He requested representation by counsel and did not elect to submit a statement in his own behalf.

6.  His commander initiated a recommendation to separate the applicant due to unsatisfactory performance.  He also requested that the requirement for rehabilitative transfer be waived because it would not be in the best interest of the Army.  The appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

7.  Accordingly, he was discharged under honorable conditions on 23 September 1996. He completed 4 years, 2 months, and 28 days of creditable active service.
Item 18 (Remarks) includes the entry "CONTINUOUS HONORABLE ACTIVE SERVICE:  19920626-19950309//IMMEDIATE REENLISTMENTS THIS PERIOD 19920626 – 19950309."

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

10.  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.

11.  Chapter 2 of Army Regulation 635-5 (Separation Documents) contains item-by-item instructions for preparing the DD Form 214.  The instructions for Item 18 (Remarks) state, for enlisted Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "Continuous Honorable Active Service From" (first day of service which DD Form 214 was not issued) until (date before commencement of current enlistment).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to honorable.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The available record shows he was counseled for various acts of misconduct to include indebtedness, failure to follow instructions, and poor duty performance. In addition, he accepted nonjudicial punishment on two occasions as a result of his acts of indiscipline.  His service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  As a point of clarification, the applicant should note that his DD Form 214 shows he completed his first period of service and that his service was characterized as honorable from 26 June 1992 to 9 March 1995.  This entry should serve as sufficient evidence to validate his honorable service.

5.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency as outlined below.

6.  In view of the above, his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the applicant's record be administratively corrected by deleting the entry " IMMEDIATE REENLISTMENT THIS PERIOD 19920626-19950309" from item 18 of his DD Form 214.



      _______ _   _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)                                         AR20120019733





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ABCMR Record of Proceedings (cont)                                         AR20120019733



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