IN THE CASE OF:
BOARD DATE: 5 November 2013
DOCKET NUMBER: AR20130003858
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 and reenlistment eligibility (RE) code.
2. The applicant states the general discharge has caused an economic hardship on him and his family. He has had to work hard to support his family because he has been unable to use his GI Bill education benefits to improve his education and skill level. He has health problems and has been unable to obtain medical help and educational benefits from the Department of Veterans Affairs (VA). His efforts to obtain an upgrade in-and-of themselves warrant favorable consideration of his request. He contends he has had to overcome a myriad of red tape and changing requirements just to be heard.
3. The applicant provides copies of:
* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 11 May 1989 for Initial Active Duty for Training as an Army Reservist
* DD Form 214 dated 18 July 1991
* DD Form 293 (Application for Review of Discharge) dated 21 February 2013 with attachments
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 attended basic and advanced individual training as an Army Reservist from December 1988 to May 1989. He enlisted in the Regular Army on 14 November 1989 in pay grade E-2.
3. The applicant was stationed in Germany as a medical specialist. He was advanced to pay grade E-3 on 1 April 1990 and reduced to pay grade E-2 on 8 August 1990.
4. An investigation into the applicant's alleged illegal transfer of 55 cartons of duty free cigarettes into the German community also noted that the applicant had previously been cited for simple assault, drunk driving, and possession of another Soldiers ration card.
5. The applicant was notified that his commander was initiating separation action for misconduct by commission of serious offense(s). He consulted with counsel, acknowledged the consequences of receiving a general under honorable conditions discharge, and declined to submit statements in his own behalf. The chain of command recommended approval and the separation authority directed a general discharge under honorable conditions.
6. On 18 July 1991, the applicant was so separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). He had completed 1 year, 8 months, and 5 days of active duty service during this period and had 4 months and 13 days of prior active duty.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 members 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.
b. Paragraph 3-7b states 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.
c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories commission of a serious offense,. An offense is serious offense, if the specific circumstances warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant was advised of the effects of a general discharge. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.
2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.
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) AR20130003858
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ABCMR Record of Proceedings (cont) AR20130003858
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