IN THE CASE OF

		BOARD DATE:     20 March 2014

		DOCKET NUMBER:  AR20130013506 


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 his general discharge be upgraded to honorable or  changed to a medical discharge.

2.  The applicant states he was separated for medical reasons not general.  He has been trying to get this changed since he was separated.

3.  The applicant did not provide any supporting documentation.

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 12 December 1992.  He held military occupational specialty (MOS) 94B (Food Service Specialist).  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service), he served in Alaska from 1 June 1993 through 
31 May 1996.

	b.  item 9 (Awards, Decorations, and Campaigns), he was awarded or authorized the National Defense Service Medal, the Army Service Ribbon, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

	c.  item 18 (Appointments and Reductions), the highest rank/grade he attained was private first class (PFC)/E-3.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 20 September 1993 for failing to go to his appointed place of duty, and on 18 March 1994 for violating a lawful general regulation.

5.  A SF 88 (Report of Medical Examination), dated 29 March 1994, shows the applicant was qualified for separation.

6.  On 30 March 1994, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct-minor disciplinary infractions.  The commander stated the applicant had accepted NJP on 
20 September 1993 and 18 March 1994.  He recommended the applicant receive a General Discharge Certificate.

7.  On 6 April 1994, the applicant acknowledged receipt of the separation notification action, consulted with counsel, and he indicated a statement on his own behalf was not submitted.

8.  The applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The commander further recommended waiver of any rehabilitative transfer.

9. The applicant's battalion commander recommended approval of the discharge and that the applicant's service be characterized as general under honorable conditions.

10.  On 18 April 1994, the separation authority approved the applicant's discharge and directed he receive a General Discharge Certificate.  

11.  On 2 May 1994, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 
14-12b, by reason of misconduct with his service characterized as Under Honorable Conditions (General).  He had completed a total of 1 year, 5 months, and 1 day of creditable active duty service.

12.  His service medical records are not available for review.

13.  There is no available evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  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 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.   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 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 evidence of record shows the applicant was discharged for misconduct.  He had received NJP on two occasions and his commander initiated separation action against him.  

2.  The applicant's administrative discharge for misconduct based on commission of a serious offense was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

3.  The applicant did not provide any evidence in support of his assertion that he was (or should have been) separated due to medical reasons.  

4.  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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ABCMR Record of Proceedings (cont)                                         AR20130013506



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