IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120022503 


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 upgrade of his general discharge to an honorable discharge.

2.  The applicant states he has suffered enough.  He was just a kid when he was discharged.  It took him a long time to find himself.  He has worked for most of his 39 years, he has paid taxes, and he enlisted during a time of war.  In June or July, 2012, he became positive for the human immunodeficiency virus (HIV).  He is now begging for help.  He lost $1,200.00 that he had paid toward the Montgomery GI Bill for educational assistance.  He waited several months for assistance only to get turned down.  All he gets is $200.00 in food stamps.  He does not even know if the upgrade of his discharge is important to him anymore.  His life is already a "living hell."

3.  The applicant provides no additional documentation.

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 22 January 1992, the applicant, at 18 years and 7 months of age, enlisted in the Regular Army.  He completed his initial training and was assigned to Fort Leonard Wood, MO for duty as a patient administration specialist.

3.  On 13 July 1994, the applicant was notified of the commander's intention to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The commander cited the applicant's three nonjudicial punishments (NJPs) between 25 October 1993 and 17 June 1994 for stealing, destroying private property, twice failing to repair, destroying government property, and for failing to obey a lawful order.  The applicant acknowledged receipt of the notification.

4.  On 22 July 1994, the company commander recommended the applicant be discharged.  He indicated that rehabilitation was not appropriate.

5.  On 24 July 1994, the troop commander recommended the applicant be discharged with an under other than honorable conditions characterization of service.

6.  On 1 August 1994, the separation authority approved the applicant's recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant be discharged with a general, under honorable conditions characterization of service.

7.  Accordingly, on 16 August 1994, the applicant was discharged.  He completed 2 years, 6 months, and 25 days of creditable active duty service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	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 contends his military records should be corrected by upgrading his general discharge to an honorable discharge because he was just a kid when he was discharged.  He contends that he has suffered enough.

2.  The evidence of record shows the applicant was discharged based on three NJPs for misconduct spanning a period of about 8 months.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was over 18 1/2 years of age when he enlisted.  He had satisfactorily completed training.  His satisfactory performance for a time demonstrates his capacity to serve and shows that he was neither too young nor immature.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20120022503



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022503



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1