BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120022192 


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 to honorable.

2.  In his manual application to the Board, he states there was no evidence presented that showed he was guilty of a criminal offense.  The charges were dropped.  He states he should not have his right to benefits taken from him for something he is not guilty of doing.

3.  He provides a self-authored statement.

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 20 July 1988, the applicant enlisted in the Regular Army.

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 8 October 1991, shows he was barred from reenlistment.  This document shows he received nonjudicial punishment (NJP) on three occasions as follows:

* on 11 September 1989, for being disrespectful to a noncommissioned officer
* on 15 February 1990, for disobeying a lawful order
* on 29 August 1991, for not being at his place of duty

4.  A DA Form 3975 (Military Police Report), dated 7 November 1991, shows another Soldier reported his automated teller machine (ATM) card had been taken by an unknown individual or individuals who withdrew $1,000.00 in U.S. currency from various ATM machines.  A military police investigator found the applicant had taken the ATM card and had withdrawn the money.  The applicant was apprehended and advised of his rights, which he invoked.  A Staff Judge Advocate opined that there was sufficient evidence to title the applicant with larceny of private property.

5.  His record shows he was imprisoned by civil authorities from 22 January to 14 February 1992.  A DA Form 4856 (General Counseling Form) shows he was counseled by his commander on 18 February 1992 following his return from civil confinement.  This form shows, in part, that civil charges against him had been dropped.  His commander informed him that he would still be charged under Article 121 (Larceny and Wrongful Appropriation), Uniform Code of Military Justice (UCMJ).  The available records do not show the reason for his civil confinement.

6.  On 16 February 1992, he accepted NJP imposed by his battalion commander under the provisions of Article 15, UCMJ, for the following offenses:

* stealing $1,000.00 from a fellow Soldier sometime between 25 and 27 September 1991
* stealing the fellow Soldier's ATM card on or about 25 September 1991

7.  He did not demand trial by court-martial and he did not appeal the NJP.

8.  On 23 March 1992, his commander informed him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense.  He stated the reason for the proposed action was the applicant's field-grade NJP for larceny.  He informed the applicant that he was recommending a general discharge and he informed him of his rights.

9.  On 23 March 1992, he was advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effect of any action taken by him in waiving those rights.

10.  He elected not to submit statements in his own behalf and he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

11.  On 24 March 1992, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.

12.  On 1 April 1992, he was discharged in accordance with the separation authority's decision.  He completed 3 years, 7 months, and 18 days of net active service.

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

14.  He provides the following self-authored statement:

Before I received the Article 15 for commission of a serious offense, I spent two weeks in Cumberland County Jail.  During that time there was an investigation being conducted to see if a crime had been committed.  At the end of the investigation the charges were dropped because of no evidence.  It was determined that the other serviceman involved had given me his bank card, the pin [sic] code, and permission to use it.  There was no breaking into his room or theft of his wallet.  According to the company commander, it didn't matter that I was authorized to use the card, it is unacceptable behavior and it would not be tolerated.  My situation would be used to set an example to the other members of my unit that he wouldn't except [sic] anything but perfect soldiering.  Since there was no crime then my Article 15 was unjust, and my discharge should be upgraded.

15.  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 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

	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 available evidence does not support the applicant's request for an upgrade of his discharge to honorable.

2.  The applicant provided no documentary evidence to support his claim that his field-grade NJP for theft of an ATM card and $1,000.00 from a fellow Soldier was unjust.  There is no evidence indicating he had permission to use the ATM card and an investigation found sufficient evidence to title him for larceny of private property.  The fact that civil charges against him were dropped had no bearing on any pending charges under the UCMJ.  As a result of his NJP for commission of a serious offense, his commander recommended his discharge in accordance with the governing regulation.

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

4.  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 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)                                         AR20120022192



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ABCMR Record of Proceedings (cont)                                         AR20120022192



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