BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006161 


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, under honorable conditions discharge (GD) to an honorable discharge (HD).

2.  He states the characterization of his service has prevented him from getting jobs and taking advantage of veterans' benefits he would otherwise have been eligible to receive.  He believes his discharge should be upgraded to honorable after these 21 years.  He is finding it difficult to get Federal employment because of the characterization of his service.

3.  He provides no additional documentation in support of his request.

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.  On 1 December 1986, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty MOS 32D (Communications System Circuit Controller – later converted to MOS 31N).

3.  On 19 September 1990, his battalion commander imposed nonjudicial punishment (NJP) against him under the provisions of Article 15, Uniform Code of Military Justice, for operating a passenger car while drunk.  The applicant appealed the punishment, and his appeal was denied.

4.  A form entitled Request for Preparation of Administrative Separation - Kaiserslautern Legal Service Center (Consolidated), dated 6 February 1991, shows the applicant's company commander requested preparation of an administrative separation packet to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b(1), for a pattern of misconduct based on him having received NJP twice since October 1990.

5.  On 7 February 1991, he accepted NJP for:

* violating a lawful general regulation by wrongfully driving a vehicle while his U.S. Army Europe (USAREUR) driver's license was revoked
* stealing his revoked USAREUR driver's license

6.  On 13 March 1991, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of serious offenses and informed him of his rights.  He informed the applicant he was recommending separation because he operated a vehicle while drunk, stole a revoked USAREUR driver's license, and drove a vehicle while his USAREUR driver's license was revoked.  

7.  On 13 March 1991, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

8.  After consulting with counsel, he elected not to submit statements in his own behalf.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  

9.  On 13 March 1991, his commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-200, 

paragraph 14-12c.  His commander recommended that the applicant receive an HD.  

10.  On 18 March 1991, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he receive a GD Certificate.  

11.  On 27 March 1991, the applicant was discharged with a GD after completing 4 years, 3 months and 27 days of net active service.  Item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "AR 635-200, PARA 14-12b," and item 28 (Narrative Reason for Separation) shows the entry "MISCONDUCT–PATTERN OF MISCONDUCT."

12.  The available records do not show why there is a difference in the regulatory authority for separation shown in the approval of his separation and that shown on his DD Form 214.

13.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	b.  Paragraph 3-7a provides that an HD 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 available evidence does not support the applicant's request for an upgrade of his GD to an HD.  

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits or to enhance their ability to gain employment.  Further, the passage of time is not a basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.  

4.  The applicant received NJP for operating a passenger car while drunk.  Less than 5 months later, he received NJP for driving a vehicle while his driver's license was revoked and stealing his revoked driver's license.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, he is not entitled to an HD.

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)                                         AR20130006161





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006161



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1