IN THE CASE OF:	  

		BOARD DATE:  24 September 2013

		DOCKET NUMBER:  AR20130001380 


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 to an honorable discharge.

2.  The applicant states his general discharge was supposed to be upgraded to honorable; however, it has never been upgraded.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 12 June 1990. 

3.  On 21 April 1992, the applicant was notified he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.  His commander cited as the basis for his recommendation the applicant's alcohol abuse (TRAC II Failure) and a civil court conviction on 14 April 1992 for driving under the influence of alcohol on 27 March 1992.

4.  The applicant acknowledged receipt of the notification recommending his discharge.  He acknowledged he understood that if he received a discharge/ character of service which is less than honorable, he may make application to the Army Discharge Review Board (ADRB) or this Board for upgrading.  However, he realized that an act of consideration by either board does not imply that his discharge will be upgraded.

5.  On 7 May 1992, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14 for misconduct – pattern of misconduct and directed the issuance of a General Discharge Certificate.

6.  On 18 May 1992, the applicant was discharged accordingly.  He completed
1 year, 11 months, and 7 days of creditable active service this period.

7.  There is no evidence the applicant petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitation.

8.  Army Regulation 635-200 (Personnel Separations) 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 states 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 contentions have been noted.

2.  There is no evidence in the available record, nor has he submitted any evidence showing that at the time he was being processed for discharge, he was told that his discharge would be upgraded.

3.  The available evidence shows that at the time he was being processed for discharge he acknowledged he understood that if he received a discharge/ character of service which is less than honorable, he may make application to the ABRB or this Board for upgrading.  He also acknowledged that he realized that an act of consideration by either board does not imply that his discharge will be upgraded.

4.  Although an under other than honorable conditions discharge was normally considered appropriate for the authority and reason for his discharge, it appears the separation authority considered his overall record of service warranting a general discharge.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

6.  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)                                         AR20130001380



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ABCMR Record of Proceedings (cont)                                         AR20130001380



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