BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022527 


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 under honorable conditions to an honorable discharge.

2.  The applicant states:

* he was unaware he could have his discharge upgraded within 180 days
* he was discharged within 3 days of the disciplinary action
* he was innocent and although he did eventually exonerate himself of the fraud charges, he was unable to prove his innocence of the charge of driving under the influence (DUI) of alcohol
* it took 12 years to prove his innocence despite the fact that the U.S. Army Criminal Investigation Command could have released this information earlier

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's records show he enlisted in the Regular Army on 13 October 1994 and he held military occupational specialty 14S (Avenger Crewmember).  He served in Korea from 26 March 1995 to 25 March 1996.

3.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  His records show he frequently received negative counseling by members of his chain of command for various infractions, including:

* multiple instances of failing to be at his appointed place of duty
* multiple instances of failing to obey orders
* disorderly conduct
* missing formation and failing to report
* being absent from duty
* substandard performance
* drinking under age
* dereliction in the performance of his duties
* missing from training
* traffic violations
* indebtedness
* suspension of driving privileges
* detention by civil authorities
* failing to appear in civil court
* DUI
* possessing marijuana

5.  On 2 June 1996, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his ongoing misconduct; specifically, his DUI and marijuana possession.  The applicant was furnished with a copy of this bar but he elected not to submit a statement in his own behalf.  The bar was ultimately approved by the proper authority.


6.  On 1 July 1996, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for missing accountability formation twice and disobeying a lawful order.

7.  On 31 July 1996, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

8.  On 18 September 1996, he was convicted by the Municipal Court in and for the City of Hinesville, GA, for the civilian charge of disorderly conduct.

9.  On 28 October 1996, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The specific reasons are cited as his being absent without leave, numerous instances of failing to report, disorderly conduct, underage drinking, and possessing marijuana.  He recommended a discharge under other than honorable conditions.

10.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board and a personal appearance before such board.  He also elected not to submit a statement in his own behalf.  He acknowledged he understood that:

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

11.  Subsequent to his acknowledgement, the applicant's immediate commander initiated separation action against him for misconduct in accordance with chapter 14 of Army Regulation 635-200.   The immediate commander further recommended a discharge under other than honorable conditions.  His intermediate and senior commanders recommended approval of the discharge action.

12.  On 20 November 1996, he again consulted with counsel and he requested a conditional waiver.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general under honorable conditions.

13.  On 24 November 1996, his intermediate commander recommended approval with his service characterized as general under honorable conditions.  He stated the applicant needed to leave the Army before he could negatively affect the morale and discipline of the unit.  He stated the applicant's continued presence would infect others in the unit.

14.  On 4 December 1996, his senior commander also recommended approval with his service characterized as general under honorable conditions.  He agreed that the applicant needed to leave the Army before he could negatively affect the morale and discipline of the unit any further.

15.  On 23 December 1996 subsequent to a legal review for legal sufficiency and consistent with the chain of command's recommendation, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense – with his service characterized as general under honorable conditions.  On 9 January 1997, the applicant was accordingly discharged.

16.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under honorable conditions (general).  He completed 2 years, 2 months, and 20 days of creditable active military service and he had lost time from 12 to 15 September 1996 and 7 to 9 January 1997.

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

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 in effect at the time established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was 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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed multiple serious offenses in that he was absent without authority, frequently failed to report, was convicted by civil authority of disorderly conduct, committed underage drinking, and wrongfully possessed marijuana.  As such, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  Contrary to his argument that his discharge could be upgraded within 180 days, the Army never had a policy wherein a discharge would be upgraded due solely to the passage of time.

3.  Contrary to his argument that he was discharged within 3 days of the disciplinary action, the evidence of record clearly shows he committed serious offenses over a period of time and it was not one single offense that led to his discharge.

4.  Contrary to his argument that he was innocent and that he eventually exonerated himself of the fraud charges but was unable to prove his innocence of the DUI charge, the evidence of record shows multiple reasons for his separation, underage drinking was one of many.

5.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20120022527



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ABCMR Record of Proceedings (cont)                                         AR20120022527



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