IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120020811 


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 general discharge and a change of his narrative reason for separation.

2.  The applicant states:

* he had no misconduct while performing his official duties for the Army or as a military police officer
* he received an Article 15, under the provisions of the Uniform Code of Military Justice (UCMJ), for yawning in formation and disregarding orders by marrying a German National in July 1989
* his discharge was initiated immediately after he was married
* he has remained married for 23 years
* there was no serious misconduct to warrant a general discharge since he served his country honorably
* he continues to live an honorable life and desires his record to reflect this
* he has no criminal record and he has served his community as a Reserve police officer

3.  The applicant provides:

* Letter of Appreciation, dated 17 October 1988
* Officer of the Month Certificate, dated 31 August 2011
* Certificate of Appreciation, dated 3 November 2011


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 29 July 1987, the applicant enlisted in the Regular Army and he completed training and was awarded military occupational specialty 95B (Military Police).  The highest rank/grade he attained while on active duty was private first class (PFC)/E-3.

3.  The applicant was punished under Article 15, UCMJ, on the following occasions:

* on 16 November 1988, for failure to obey an order
* on 12 May 1989, for being disrespectful towards a commissioned officer and a noncommissioned officer (NCO)

4.  Records show the applicant received numerous counseling statements for a substandard personal appearance and area, failure of the Army physical fitness test, driving a military vehicle on a suspended license, failure to obey orders, insubordination, being disrespectful towards an NCO and officer, failure to pay his debt, failure to repair, and for a lack of military bearing.

5.  On 24 May 1989, the applicant was notified of his commander's intent to initiate actions to bar his reenlistment.  The applicant acknowledged receipt and declined to submit statements in his own behalf.

6.  On 12 June 1989, the applicant's bar to reenlistment was approved.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 20 November 1984, shows the applicant was found to be mentally responsible and he had the mental capacity to understand and participate in proceedings taken against him.

8.  On 7 July 1989, the applicant's administrative separation action under the provisions of chapter 14, Army Regulation 635-200 (Enlisted Separations), was found to be legally sufficient.

9.  An Administrative Eliminations Form – Administrative Board Procedure, dated 12 July 1989, shows:

	a.  On 12 July 1989, the applicant was notified of his immediate commander's intent to initiate separation action against him in accordance with paragraph
14-12, Army Regulation 635-200, for a pattern of misconduct.  The commander recommended the issuance of a general discharge.

	b.  On 18 July 1989, the applicant acknowledged notification of the commander's intent to recommend him for separation.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He also elected not to submit statements on his own behalf.  In his acknowledgement, he indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws

10.  On 18 July 1989, the separation authority directed that the applicant be discharged under the provisions of paragraph 14-12b, Army Regulation 635-200 with a general characterization of service and that he would not be transferred to the Individual Ready Reserve. 

11.  Accordingly, on 17 August 1989, the applicant was discharged.  He completed 2 years and 19 days of creditable active military service.

12.  The applicant provides a Letter of Appreciation, dated 17 October 1988, for outstanding duty performance.  He also provides two certificates of recognition, dated 2011, for his service and support to the community of Southport, IN.

13.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
14.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.

   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.  The applicant's request for an upgrade of his general discharge was carefully considered.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although the applicant received accolades for his duty performance in both the military and civilian community, this does not mitigate his many instances of misconduct.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an 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)                                         AR20120020811



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ABCMR Record of Proceedings (cont)                                         AR20120020811



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