BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130000456 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states:

* the events that led to his discharge were influenced by significant emotional distress caused by an external family situation and were not given proper or due consideration
* since discharge, he has established himself as an upstanding and contributing member of society with no criminal record or incidents of misconduct
* he is an established businessman, entrepreneur, and philanthropic activist committed to aiding those less fortunate
* he requests an upgrade of his discharge based on the reasons above and to end his suffering of the civil consequences of his discharge

3.  The applicant provides a copy of his resume.

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.  After having had a prior period of service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 6 August 1987.  He completed training and he was awarded military occupational specialty 91A (Medical Specialist).

3.  On 2 November 1987, the applicant's duty status was changed from "present to duty" to "absent without leave (AWOL)."  On 5 November 1987, his status was changed to "present for duty."

4.  On 27 May 1988, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order issued by a commissioned officer.

5.  On 4 November 1988, the applicant was required to appear in U.S. Magistrate Court for an expired license tag.

6.  On 30 March 1989, the applicant received NJP under the provisions of Article 15, UCMJ, for wrongfully using marijuana.

7.  Records show the applicant was counseled on numerous occasions for instances of disobeying lawful orders.

8.  On 10 May 1989, the applicant was notified by his commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 14, for patterns of misconduct; specifically, his two Article 15's and record of counseling.  The commander recommended the issuance of a general discharge.

9.  On 18 May 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.


10.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 19 May 1989, shows the applicant was found to be mentally responsible and he had the mental capacity to understand and participate in proceedings taken against him.  He was cleared for any administrative and disciplinary action deemed appropriate by the command.

11.  On 26 June 1989, the applicant submitted statements in his own behalf requesting that his entire period of service be considered and that an honorable discharge be issued to him.

12.  On 26 July 1989, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for patterns of misconduct, and issued a General Discharge Discharge Certificate.

13.  On 4 August 1989, the applicant was discharged accordingly.  He completed 1 year, 11 months, and 29 days of net active service this period.

14.  The applicant provides a copy of his résumé that shows his employment history since 1994.

15.  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.

16.  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.  

	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 to an honorable 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 he contends his misconduct was due to events influenced by significant emotional distress caused by an external family situation and not properly considered, there is insufficient evidence to support this contention and he fails to provide such evidence.  His misconduct was based on a pattern of misconduct that included disobeying orders, marijuana use, and being AWOL.  Further, there were many options available to assist him with his family.

4.  The applicant's post-service achievements and conduct are noted.  However, his military service was marred with misconduct.  Although an under other than honorable conditions discharge was normally appropriate, it appears the separation authority considered his overall record of service when he directed the issuance of a general discharge.

5.  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)                                         AR20130000456



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ABCMR Record of Proceedings (cont)                                         AR20130000456



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