IN THE CASE OF:	   

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120020250 


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 an upgrade of his discharge under honorable conditions to an honorable discharge.

2.  The applicant states:

* he was given the opportunity to remain on active duty or to leave the Army
* if he had stayed in the Army they would have taken money and reduced his rank
* he also lost his college money because he paid into the Army College Fund
* he believes he was placed into a situation in which he had no choice
* he is currently the president of a veterans organization and he continues to support his country and the troops
* he wishes he had the opportunity to continue to serve in the 82nd Airborne and possibly retire
* he has filed for compensation for a few injuries he has acquired
* an upgrade of his discharge would help him and his family as well
* there were situations out of his control at the time of his discharge which were caused a lot of by those in authority
* circumstances led to a discharge under honorable conditions

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.  The applicant enlisted in the Regular Army on 1 November 1988.  He completed training as a metal worker and was assigned to Company C, 782nd Maintenance Battalion, 82nd Airborne Division.

3.  The applicant was counseled on at least eight separate occasions between 10 September 1990 and 4 February 1991 for the following acts of misconduct:

* being arrested for assaulting a female
* performance
* failure to go to formation
* leaving his place of duty
* leaving the company area during physical training
* failure to be at driving training
* failure to be at appointed place of duty

4.  On 3 December 1990, the applicant accepted nonjudicial punishment (NJP) for failure to go to his appointed place of duty.

5.  On 7 February 1991, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12B(2), for misconduct.  He acknowledged receipt of the notification and he waived his right to consult with counsel.

6.  The appropriate authority approved the recommendation for discharge on 26 February 1991.  On 5 March 1991, the applicant was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12b, due to misconduct.  He completed 2 years and 4 months of net active service this period.

7.  The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

8.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  

	b.  Paragraph 3-7a states 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 contentions have been noted.  

2.  The available records show that he accepted NJP for failure to go to his appointed place of duty.  He was counseled on at least eight separate occasions for his acts of misconduct.

3.  Considering the nature of his offenses and his numerous acts of misconduct, it does not appear that the type of discharge he received is too harsh.  The type of discharge he received appropriately reflects his overall record of service.

4.  The fact that he has filed for compensation for injuries he has acquired is an insufficient justification for upgrading the applicant's discharge.

5.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20120020250



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ABCMR Record of Proceedings (cont)                                         AR20120020250



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