IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130004889 


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 honorable.

2.  The applicant states:

* he was 18 years old
* he can't use any benefits
* he is a Soldier
* he has no life
* he needs help with benefits

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.  The applicant was born on 12 November 1967.  He enlisted in the Regular Army at 17 years, 9 months, and 4 days of age on 15 August 1985 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 64C (motor transport operator).

3.  Between January and August 1986, nonjudicial punishment (NJP) was imposed against him on three occasions for:

* failing to repair
* sleeping on post and failing to repair (two specifications)
* using marijuana

4.  On 21 October 1986, a bar to reenlistment was imposed against him.

5.  He was counseled for:

* failing to perform all of his extra duties
* failing to attend exercise training
* unsatisfactory performance
* reporting late for guard duty
* leaving his post 
* being late for formation

6.  On 7 November 1986, the applicant was notified of his pending separation for patterns of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  The unit commander cited the applicant's three instances of NJP.

7.  He consulted with counsel, waived his rights, including his right to a board, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

8.  On 5 January 1987, the separation authority approved the recommendation for discharge for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed the issuance of a general discharge.

9.  On 30 January 1987, he was discharged accordingly.  He completed 1 year, 5 months, and 16 days of creditable active service.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

12.  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 applicant contends he was only 18 years old.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  His record of service included adverse counseling statements, a bar to reenlistment, and three instances of NJP.  As a result, this record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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 therefor were appropriate considering all the facts of the case.

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

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of qualifying an applicant for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

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)                                         AR20130004889



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ABCMR Record of Proceedings (cont)                                         AR20130004889



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