IN THE CASE OF:	

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130013657 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he was 19 years of age when he joined the Army and was immature and uncertain about the requirements of the Army and after about 1 year he was involved in an automobile accident in which he suffered a dislocated hip, broken pelvis and dislocated shoulder when he was thrown from the car.  He goes on to state that that event caused a downward spiral of his behavior because of medications and his inability to be part of his company in a physical way because he walked with a cane and was assigned various jobs which was frustrating having to work in different companies and having different bosses all the time.  He continues by stating that he went home on leave and his friend was in a very bad car accident and he felt obligated to stay and help him and he requested an extension of his leave, which was denied.  He further states that he made the unfortunate decision to stay an additional 28 days and then turned himself in.  He received nonjudicial punishment which included 30 days in the brig at Quantico; however, he was released after 25 days for good behavior.  He concludes by stating that he has tried to live as a good citizen and has a number of medical problems resulting from the car accident but is unable to receive benefits from the Department of Veterans Affairs because of his discharge.    

3.  The applicant provides a three-page letter dated in 2013 which he states is a copy of a statement he submitted at his NJP hearing. 

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 serving in the North Carolina Army National Guard as a light weapons infantryman, the applicant enlisted in the Regular Army on 2 November 1995 for a period of 3 years and assignment to Fort Drum, New York as an infantryman.

3.  On 30 January 1996, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty, dereliction of duty, and willful disobedience of a noncommissioned officer (NCO). 

4.  On 12 August 1997, he was convicted by a summary court-martial of being absent without leave (AWOL) from 23 July to 6 August 1997 and for using his government American Express card during the period 3 May to 28 June 1997 while not in a temporary duty status.  He was sentenced to confinement for       30 days, reduction to the pay grade of E-1 and a forfeiture of $580.00,

5.  On 7 October 1997, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct.  He cited the applicant’s disciplinary records and repeated misconduct as the basis for his recommendation. 

6.  After consulting with defense counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights in return for a guarantee of receiving at least a general discharge.

7.  The entire chain of command recommended against approving the conditional waiver and the convening authority agreed and directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on    24 December 1997 under the provisions of Army Regulation 635-200, paragraph 14-12C, due to misconduct.  He had served 2 years, 1 month and 8 days of active service and had 38 days of lost time due to AWOL and confinement. 

9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding his discharge have been noted; however, they are not sufficiently mitigating when compared to the repeated nature of his offenses during such a short period of service.  The applicant's overall service simply did not rise to the level of a discharge under honorable conditions.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case.

4.  In the absence of evidence showing that an error or injustice occurred in his case, there appears to be no basis to grant his request.

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)                                         AR20130013657





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ABCMR Record of Proceedings (cont)                                         AR20130013657



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