IN THE CASE OF:	  

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007688 


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 his discharge was unwarranted.  He would like to know why his unit went out of its way to discharge him.  This can be confirmed with his unit from the commanding officer to the executive officer.  

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 U.S. Army Reserve on 31 July 1986.  He entered active duty for training (ADT) on 16 October 1986.  He completed training and was awarded military occupational specialty (MOS) 63N (M60A1-A3 tank system mechanic).  He was released from ADT on 24 March 1987 and was transferred to a Reserve unit.

3.  He enlisted in the Regular Army, in pay grade E-2, on 12 November 1987.  He served in MOS 63N.  He served in Germany from 6 December 1987 through 24 January 1990.  He was promoted to pay grade E-4 on 4 April 1989.

4.  On 1 May 1990, he was advised that his check cashing privileges were suspended indefinitely based upon his tenth offense of writing bad checks.

5.  He received counseling between May and July 1990 for writing excessive bad checks, failing to make an appointment that was scheduled, and separation consideration for failing to improve his performance and controlling his personal affairs.

6.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, on/for:

* 17 June 1990 - failing to be at his appointed place of duty
* 5 and 20 August 1990 - failing to go at the time prescribed to his appointed place of duty
* 6 November 1990 - failing to go at the time prescribed to his appointed place of duty

7.  A Report of Mental Status Evaluation, for the purpose of his separation for misconduct, shows his behavior was found to be normal.  He was fully alert and full oriented.  His mood or affect was found to be anxious.  His thinking process was clear, his thought content was normal, and his memory was good.  The examining physician stated:

   a.  The applicant’s present maladjustment to military service reflected a life-long pattern of recurrent and immature behavior, as well as an inability to relate effectively to others and was so deeply ingrained and severe as to significantly impair the individual’s capacity to adapt to and function in the military environment.  That condition and the problems presented by the individual were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the individual into a satisfactory member of the military would be successful.  
   
   b.  The individual was mentally responsible for his behavior, able to distinguish right from wrong, and to adhere to the right and had the mental capacity to understand and participate in administrative board proceedings.  The individual was cleared for any administrative action deemed appropriate by the commander.

8.  On 5 February 1991, the applicant’s company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-12a, for misconduct.  The company commander stated the reasons were:  writing bad checks from 3 March through 15 April 1990 and Article 15 punishments for missing an appointment and missing formation on 19 and 25 July and 7 August 1990.  He recommended the applicant receive a general discharge.  He advised the applicant of his rights.

9.  On 5 February 1991, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  On 6 February 1991, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

11.  He was discharged accordingly in pay grade E-1 on 13 February 1991, under the provisions of Army Regulation 635-200, paragraph 14-12a, for Misconduct- Minor Disciplinary Infractions.  He was credited with completing 3 years, 3 months, and 1 day of net active service.  His service was characterized as under honorable conditions (general).   

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  The regulation stated in:

   a.  Paragraph 14-12b – Soldiers are subject to discharge for minor disciplinary infractions.  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 appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was counseled between May and July 1990 for writing bad checks and separation consideration for failing to improve his performance and controlling his personal affairs.  He was punished under Article 15 for missing an appointment and missing formations.  

2.  Upon notification of his separation he acknowledged, after consulting with counsel, he understood the basis for the contemplated separation action and its effect and waived his rights.  It appears that based on his overall record the separation authority directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

3.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable and he now warrants a fully honorable discharge.  

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130007688





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ABCMR Record of Proceedings (cont)                                         AR20130007688



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