BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130014385 


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 general discharge be changed to an honorable discharge.

2.  The applicant states in 1994 he was told his general discharge would turn into an honorable discharge.  He needs his DD Form 214 (Certificate of Release or Discharge from Active Duty) to state he received an honorable discharge.

3.  The applicant provides no additional documentation in support of this case.

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 20 August 1992.  He successfully completed training and he was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).  

3.  He was counseled on:

* 3 March 1993, for failure to pay debt
* 31 March 1993, for being absent from the 6:30 a.m. formation and for failure to notify his supervisor of his whereabouts
* 21 April 1993, for failure to manage pay
* 10 June 1993, for financial and personal affairs interfering with his military job
* 16 July 1993, for performance below Army standards
* 30 August 1993, for bar to reenlistment
* 7 September 1993, for being absent from the 6:30 a.m. and 9:00 a.m. formations
* 8 September 1993, for overdue payment of his Deferred Payment Plan
* 28 September 1993, for failure to repair and missing a mandatory class
* 13 October 1993, for missing 6:30 a.m. formation
* 19 October 1993, for writing two bad checks and not having sufficient funds in his checking account
* 6 January 1994, for missing 6:30 a.m. formation
 
4.  On 19 April 1993, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to report to his appointed place of duty.  

5.  A DA Form 4126-R (Bar to Reenlistment Certificate) approved on 30 August 1993 indicates the applicant was barred from reenlistment for receiving an Article 15 for not being at his appointed place of duty and for receiving negative counseling numerous times.  He elected not to submit a statement in his behalf.

6.  On 9 December 1993, he accepted NJP under Article 15, UCMJ for wrongful use of marijuana.  His punishment consisted of reduction to private (PV1)/E-1 and forfeiture of $407.00 per month for two months (both suspended to be automatically remitted if not vacated before 7 June 1994) and extra duty for 45 days.

7.  On 7 January 1994, the suspension of reduction to grade PV1/E-1 and forfeiture of $407.00 per month for two months was vacated based on his failure to be at his appointed place of duty on 1 January 1994.

8.  On 27 January 1994, the applicant’s commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  The reason cited by the commander was the applicant's marijuana use, failure to pay just debts, writing bad checks, not being at his appointed place of duty, and failure to notify supervisors of his location.

9.  On 1 February 1994, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  He was advised that he could receive an under other than honorable conditions discharge and he was advised of his rights. 

10.  On 1 February 1994, the applicant submitted a request for a conditional waiver of consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than under honorable conditions.  

11.  On 8 March 1994, the appropriate authority disapproved the conditional waiver and directed an administrative separation board convene to determine whether the applicant should be separated for misconduct.  

12.  A DA Form 1574 (Report of Proceedings by Investigating Officer (Board of Officers)) shows the board was held on 22 April 1994 and the board members recommended the applicant be separated due to a pattern of misconduct and that he be given a general discharge.

13.  On 13 May 1994, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, with issuance of a General Discharge Certificate.  On 19 May 1994, he was discharged accordingly.  His DD Form 214 shows he completed 1 year and 9 months of creditable active service with no time lost.

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

15.  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, 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.

16.  Army Regulation 635-200, paragraph 3-7a, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was told his discharge would turn to honorable.  The U.S. Army does not now have and it has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in his or her discharge.  Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

2.  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.  

3.  He was counseled on numerous occasions regarding his performance and conduct, he received two Article 15's, and he was barred from reenlistment.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade his 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)                                         AR20130014385





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ABCMR Record of Proceedings (cont)                                         AR20130014385



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