IN THE CASE OF:	  

		BOARD DATE:	  29 October 2013

		DOCKET NUMBER:  AR20130005256 


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, in effect, an upgrade of his general discharge under honorable conditions.  He also requests to appear before the Board.

2.  The applicant states he wishes to appear before the Board to explain why he ended up with a general discharge as a prior service Soldier, which he regrets every day.  He believes that if given the opportunity to explain the situation and the actions he has taken in life, such as voluntarily working in Iraq, somehow it will make up for his foolish behavior.

3.  The applicant provides DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 21 July 1984 and 11 April 1986; a National Guard Bureau Form 22 (Report of Separation and Record of Service); and a memorandum, dated 15 September 2005, subject:  Letter of Contractor Identification (Applicant).

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 prior honorable service in the Regular Army and Army National Guard, the applicant again enlisted in the Regular Army on 7 November 1985.

3.  He was absent without leave (AWOL) on 20 November 1985 and surrendered to military authorities on 9 December 1985.

4.  On 8 January 1986, he was found guilty by a summary court-martial of the AWOL offense.

5.  He was AWOL again on 12 February 1986 and returned to military control on 8 March 1986.

6.  On 13 March 1986, he was found guilty by a summary court-martial of the AWOL offense.

7.  On 28 March 1986, he was advised by his unit commander that he was initiating action to discharge him from the Army for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The commander cited the fact that the applicant had been AWOL twice since November 1985 as the reason for the proposed separation action.  The applicant was also advised of his right to consult with legal counsel and to submit statements in his own behalf.  He elected not to submit a statement.

8.  On 31 March 1986, he acknowledged receipt of the proposed separation action.  He declined the opportunity to consult with legal counsel and elected not submit a statement in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge if he received a character of service of less than honorable; however, an act of consideration by either board did not imply his discharge would be upgraded.

9.  On 1 April 1986, the appropriate separation authority approved the recommendation for separation for minor disciplinary infractions or a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12, with the issuance of a General Discharge Certificate.  On 11 April 1986, he was discharged accordingly.  He completed 2 months and 22 days of net active service during this period and he accrued 76 days of lost time.

10.  There is no evidence indicating the applicant applied to the ADRB for an upgrade of his discharge.

11.  He provides a memorandum, dated 15 September 2005, subject:  Letter of Contractor Identification (Applicant), that shows he was authorized travel outside the United States as a contractor in support of Operation Iraqi Freedom.

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

	a.  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.

	b.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides guidance for hearings and the disposition of applications.  It states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge has been carefully considered.

2.  The available evidence confirms his separation was accomplished in accordance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  His record of indiscipline included two instances of AWOL, two summary court-martial convictions, and 76 days of lost time.  Based on this record of indiscipline, his service during the period in question clearly did not meet the standards of acceptable conduct for Army personnel.  As a result, he is not entitled to an honorable discharge.

4.  His claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during the period in question.

5.  He also requested to appear before the Board.  However, there are sufficient records available to conduct a fair and impartial adjudication of his case.  Additionally, a personal appearance by the applicant would not change the facts surrounding his separation processing for misconduct.  Therefore, a formal hearing is not required to serve the interest of justice in this case.

6.  Based on the foregoing evidence, there is no basis 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)                                         AR20130005256



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ABCMR Record of Proceedings (cont)                                         AR20130005256



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