IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130004404 


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 he would like his discharge upgraded to qualify for medical benefits from the Department of Veterans Affairs (VA).  At the time of his discharge, he was hospitalized for mental health reasons.  He did not know he could request an upgrade of his discharge or seek mental health services at VA hospitals.  

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.  After having had prior service, the applicant enlisted in the Regular Army, in pay grade E-1, on 16 September 1987.  He completed training and was awarded military occupational specialty 88M (motor transport operator).  He was advanced to pay grade E-3 on 22 December 1987.

3.  He was frequently counseled between September 1987 and December 1988 as follows:

* Duty/service expectations
* Failing to report to his place of duty on time on several occasions
* Disobeying a lawful order on several occasions
* Uniform and appearance not being up to military standards on several occasions
* Receiving a ticket for not having a post sticker on his privately-owned vehicle (POV)
* Dangerous operation of a POV
* Dishonorable check notification and failing to pay past due bills
* Being late for formation
* Domestic problems
* History of bad conduct and poor performance

4.  On 7 September 1988, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for disobeying a Tactical Standing Operating Procedure on 24 August 1988 and making a false statement, with intent to deceive, on 25 August 1988.  

5.  On 5 October 1988, a bar to reenlistment was initiated against him.  The bar was approved on 17 October 1988.

6.  On 1 November 1988, he was declared a rehabilitation failure as a result of the reoccurrence of spousal abuse.

7.  A Report of Mental Status Evaluation, dated 28 November 1988, shows his behavior was found to be normal.  He was found to be fully alert and fully oriented.  His thinking process was clear and his thought content was normal.  His memory was good.  The evaluation did not find any presence of a psychotic through process or major affective disorder.  He was psychologically cleared for administrative actions as deemed appropriate by the command.

8.  On 8 December 1988, suspension of his punishment imposed on 1 December 1988 of reduction to pay grade E-2 was vacated and he was reduced to pay grade E-2 accordingly.  His record is void of the Article 15.

9.  In December 1988, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for exhibited patterns of minor military infractions of discipline.  He advised the applicant of his rights and that he could receive a general or an honorable discharge.

10.  On 12 December 1988, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general or an honorable discharge and the results of the receipt of a general discharge.  He further acknowledged he could request an upgrade of a discharge which was less than honorable by making application to the Army Discharge Review Board (ADRB) or ABCMR; however, the act by either board did not imply that his discharge would be upgraded.  He waived his rights and elected to submit a statement in his own behalf.    

11.  In his undated statement, the applicant stated that he had not always been a bad Soldier.  He had recently started encountering a streak of bad luck and some of that had reflected in his work performance.  The sickness of his grandmother and his mother’s sickness and losing her job were factors.  He tried not to let those things reflect on him, but they did.  His mother losing her job and taking care of his grandmother put an extra load on him with helping her with her bills and so on.  His wife and he had a couple of mishaps that involved his chain of command, but they would like to stay with the Army.  They would really work hard to improve their situation if given another chance.  

12.  On 18 December 1988, the applicant’s battalion commander recommended approval of the applicant’s discharge with the issuance of a general discharge.

13.  On 20 December 1988, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.

14.  He was discharged accordingly in pay grade E-2 on 30 December 1988.  He was credited with completing 1 year, 3 months, and 15 days of net active service during the period under review with no time lost.

15.  There is no evidence the applicant applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated:

   a.  Chapter 14, paragraph 14-33b(1), established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  An under other than honorable conditions discharge was normally considered appropriate.

   b.  Paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was frequently counseled between September 1987 and December 1988 and punished under Article 15 for patterns of minor military infractions of discipline.  He was barred from reenlistment and also declared a rehabilitation failure.  In December 1988, his company commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 14.  He acknowledged he could receive a general or an honorable discharge.  He also acknowledged he could request an upgrade of a discharge which was less than honorable through the ADRB or ABCMR.    

2.  It appears that based on his overall record it was directed he receive a general discharge as the characterization of service for this type of discharge was normally under other than honorable conditions and he was not reduced to the lowest pay grade.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

4.  His desire to have his general discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA for service-connected conditions is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.


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)                                         AR20130004404





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004404



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1