BOARD DATE: 5 February 2014
DOCKET NUMBER: AR20130010261
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 he was advised by a Judge Advocate General (JAG) officer that after 6 months he could apply to have his discharge changed to honorable. He attempted this in 1994 and did not receive a reply. He has completed the police academy and would like to have his discharge changed.
3. The applicant did not provide any 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. The applicant enlisted in the Regular Army on 9 July 1991. He held military occupational specialty 11B (Infantryman).
3. His DA Form 2-1 (Personnel Qualification Record Part II) shows in:
a. item 9 (Awards, Decorations, and Campaigns), he was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and the Marksman Marksmanship Qualification Badge with Grenade Bar; and
b. item 18 (Appointments and Reductions), the highest rank/grade he attained was private first class (PFC)/E-3.
4. On 30 August 1993, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by wrongfully carrying a loaded privately owned weapon in his vehicle. A partial Provost Marshal Report shows the applicant was arrested by civilian authorities on 7 August 1993. He was driving a vehicle containing two loaded shotguns. When two individuals complained that shotgun blasts had damaged their house the charge was changed to assault in the first degree.
5. On 3 November 1993, his immediate commander notified him of his intent to initiate separation action against him for misconduct by commission of a serious offense under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12(c). The commander stated the applicant had been arrested by the Tacoma Police Department and charged with assault in the first degree.
6. The applicant acknowledged receipt of the separation notification action and consulted with counsel. He indicated he would submit a statement on his own behalf. The statement is not available for review.
7. The applicant's immediate commander initiated separation action and recommended the applicant receive a general discharge.
8. The battalion commander recommended a general discharge.
9. On 18 November 1993, the separation authority approved the separation and directed a general discharge. On 3 December 1993, the applicant was accordingly discharged.
10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for misconduct with his service characterized as under honorable conditions. He had completed 2 years, 4 months, and 25 days of creditable active duty service.
11. In February 1997, the Army Discharge Review Board (ADRB) determined he had been properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge.
12. 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 Soldiers overall record.
b. Paragraph 3-7a states 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 members 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 evidence of record shows the applicant committed a serious offense. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.
2. In view of the foregoing, there is no basis for granting the applicant's 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) AR20120009372
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