IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130004039 


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 he made mistakes and has turned his life around.  He is a hard worker and committed to his family, job, and church.

3.  The applicant provides:

* 3 character letters
* 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 14 June 1996.  He completed training and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).

3.  On 3 June 1997 and 24 September 1997, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for the following offenses:

* failure to go to his appointed place of duty at the time prescribed, 0530 hours, alert formation, 63rd Company Area on or about 25 April 1997
* failure to go to his appointed place of duty at the time prescribed, 0555 hours, company formation at Engineer Field, on or about 25 April 1997
* failure to go to his appointed place of duty at the time prescribed, 0555 hours, physical training formation at Engineer Field, on or about 16 May 1997
* failure to go to his appointed place of duty at the time prescribed, 0600 hours, accountability formation at Engineer Field, on or about 16 May 1997
* failure to go to his appointed place of duty at the time prescribed, 0700 hours, company formation at Engineer Field, on 21 August 1997
* dereliction of duty by sleeping while on duty on or about 10 September 1997
* wrongful marijuana use between on or about 25 July 1997 and 25 August 1997

4.  Records show he was frequently counseled by members of his chain of command for various infractions including sleeping on duty, reckless abandonment, lost and unsecured meal card, and failure to report at the time prescribed.

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 26 November 1997, shows the applicant:

* had no psychiatric disease or defect which warranted disposition through medical channels
* met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3


* was cleared for any administrative action deemed appropriate by his command

6.  On 12 December 1997, the applicant was notified of his immediate commander's intent to initiate separation action against him in accordance with paragraph14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for patterns of misconduct.  The commander recommended the issuance of a general discharge.  The applicant acknowledged notification of the commander's intent to recommend him for separation.

7.  On 16 December 1997, the applicant 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.  He elected not to submit statements in his own behalf.

8.  On 30 January 1998, 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 the characterization of his service as general under honorable conditions.  Accordingly, the applicant was discharged on 10 February 1998.

9.  His DD Form 214 confirms he was discharged by reason of misconduct in accordance with paragraph 14-12b of Army Regulation 635-200 with a character of service of under honorable conditions with 1 year, 7 months, and 27 days of creditable active service.

10.  The applicant provides three characters letters from individuals attesting to his character since discharge.

11.  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.

12.  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, 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.

   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 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.

2.  His actions at the time clearly brought discredit upon himself and the Army.  Although an under other than honorable conditions discharge was normally appropriate based on the authority and reason for his discharge, it appears his chain of command and separation authority took into consideration his overall record of service and directed the issuance of a general discharge.

3.  In view of the foregoing, there is no basis upon which to grant the 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 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)                                         AR20130004039



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ABCMR Record of Proceedings (cont)                                         AR20130004039



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