IN THE CASE OF:	  

		BOARD DATE:	    13 August 2013

		DOCKET NUMBER:  AR20130001272 


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.

2.  The applicant states he served his country with honor and pride to the best of his ability.

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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 2 October 1989 in military occupational specialty 13B (Cannon Crewmember).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* failing to obey a lawful order to report to Air Assault School on 10 January 1990
* using disrespectful language toward a superior noncommissioned officer on 28 January 1990

4.  On 5 March 1990, the applicant was released from Air Assault School for having a substandard attitude.

5.  The applicant again received NJP under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful command from a superior commissioned officer on or about 17 April 1990.

6.  On 10 May 1990, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his misconduct.  He was furnished with a copy of this bar, but he elected not to submit a statement on his own behalf.  The bar was subsequently approved by proper authority.

7.  On 10 July 1990, 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 14-12(b), for misconduct – pattern of misconduct.  Specifically, the immediate commander cited the applicant's disobedience of a lawful order, disrespect toward a noncommissioned officer, failure to follow instructions, and failure to be at his appointed place of duty.

8.  On 10 July 1990, the applicant acknowledged receipt of the commander's intent to separate him.  On 11 July 1990, he consulted with legal counsel and he 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 the procedures/rights available to him.  He waived consideration of his case by an administrative separation board and waived a personal appearance before an administrative separation board contingent upon receiving a characterization of service no less favorable than general under honorable conditions.  He also elected not to submit a statement in his own behalf.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him and he could submit an application to the Army Discharge Review Board or the ABCMR for upgrade.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

9.  The applicant's immediate commander initiated separation action against him for misconduct in accordance with Army Regulation 635-200, paragraph 
14-12(b), and recommended the issuance of a general discharge under honorable conditions.

10.  On 11 and 12 July 1990, respectively, his intermediate and senior commander recommended approval of the separation action for misconduct.

11.  On 16 July 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct – and directed his general discharge under honorable conditions.  Accordingly, the applicant was discharged on 20 July 1990.

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under honorable conditions on 20 July 1990 under the provisions of Army Regulation 635-200, chapter 14.  This form further shows he completed a total of 9 months and 19 days of net active service during this period.

13.  There is no indication in his records that 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 set forth the basic authority for the separation of enlisted personnel.  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 is clearly established that rehabilitation is impracticable or 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.

15.  Army Regulation 635-200, 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 evidence of record shows the applicant had a history of disciplinary problems including three instances of NJP under Article 15 of the UCMJ and a bar to reenlistment.  As a result, 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.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to 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 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)                                         AR20130001272



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ABCMR Record of Proceedings (cont)                                         AR20130001272



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