BOARD DATE:	 7 November 2013

		DOCKET NUMBER:  AR20130004161 


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 discharge was inequitable because it was based on one isolated incident during 30 months of service with no other adverse actions.

3.  The applicant provides no additional documentary evidence in support of his application.

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 8 July 1992 for a period of
5 years.  He was awarded military occupational specialty 95B (Military Police).

3.  On 22 September 1994, the Commanding General, U.S. Army South, Fort Clayton, Panama, issued a memorandum of reprimand (GOMOR) to the applicant for driving a motor vehicle while under the influence of alcohol on 
21 August 1994.

4.  On 4 January 1995, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct based on commission of a serious offense.  The reason for his proposed action was that on 21 August 1994, the applicant was apprehended for operating a motor vehicle while intoxicated.  The applicant was advised of his rights and the separation procedures involved.

5.  The applicant consulted with legal counsel and he was advised of the rights available to him.

	a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.

	b.  The applicant acknowledged he understood that if he received a discharge certificate/character of service that was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	c.  He indicated that statements in his own behalf were submitted; however, the applicant's separation packet does not contain any such statements.

	d.  The applicant and his counsel placed their signatures on the document.

6.  The company commander recommended approval of the applicant's separation action and that he receive a general discharge.

7.  On 9 January 1995, the separation authority approved the recommendation for discharge and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on commission of a serious offense and issued a General Discharge Certificate.


8.  On 18 January 1995, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct with a general discharge.  He completed 2 years,
6 months, and 11 days of creditable active service.

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, 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, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

   c.  Paragraph 3-7b provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to an honorable discharge because it was based on one isolated incident during his 30 months of active duty.

2.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

3.  Records show the applicant was serving as a military policeman when he received a GOMOR for operating a motor vehicle in Panama while under the 
influence of alcohol.  The evidence of record shows that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14; therefore, it appears the separation authority considered his overall record of service that warranted a general discharge.

4.  Additionally, the applicant completed only one-half of his active duty obligation.  Thus, the applicant's character of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting an honorable 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)                                         AR20130004161



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ABCMR Record of Proceedings (cont)                                         AR20130004161



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