IN THE CASE OF:	  

		BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130004689 


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 his discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant states:

* during his term of service he had no disciplinary infractions until the one before his discharge
* he feels his discharge is a bit harsh
* his problems began with a new first sergeant because the first sergeant had a different policy about Class A uniforms
* he attempted several times to get transferred, but his requests were denied
* he went absent without leave (AWOL) for 3 days to be able to see the Battalion Commander
* he was again denied a change of duty station and he was given 45 days of extra duty and restriction
* at this point he asked for a discharge  

3.  The applicant provides a copy of 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 31 March 1988 for a period of 
4 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 2 December 1989, nonjudicial punishment (NJP) was imposed against him for making false official statements and being derelict in the performance of his duties.

4.  On 21 September 1990, a bar to reenlistment was imposed against him.

5.  On 9 October 1990, NJP was imposed against him for failing to go at the prescribed time to his appointed place of duty and being AWOL from 1 to 
4 October 1990.

6.  On 5 November 1990, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14, paragraph 14-12a, for misconduct (minor disciplinary infractions).  The unit commander cited:

* his Article 15s
* he was counseled on 25 and 26 July 1990 for failure to obey an order 

7.  On 5 November 1990, he acknowledged notification of the discharge action against him, declined the opportunity to consult with counsel, declined a hearing before an administrative board, and elected not to submit a statement on his own behalf.  

8.  On 29 November 1990, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

9.  On 7 December 1990, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct (minor disciplinary infractions) with a discharge under other than honorable conditions.  He completed a total of 2 years, 8 months, and 3 days of creditable active service with 4 days of lost time.

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  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 (military or civilian 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 3-7b 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.  Although the applicant contends he had no disciplinary infractions until the one before his discharge, evidence shows NJP was imposed against him in December 1989 and in October 1990.

2.  His record of service included adverse counseling statements, two NJPs, a bar to reenlistment, and 4 days of lost time.  As a result, this record of service was not satisfactory.


3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant a general discharge.

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)                                         AR20130004689





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ABCMR Record of Proceedings (cont)                                         AR20130004689



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