IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130014604 


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 discharge under other than honorable conditions to honorable or general under honorable conditions.

2.  The applicant states:

* his misconduct was due to getting into a fight with another man over his now ex-wife
* he was arrested and he spent 2 months in jail
* he was a good Soldier and he enjoyed the U.S. Army
* he would have made the Army a career had the incident not happened

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 for 3 years on 5 February 1986.  He completed training as a multichannel communications systems operator.

3.  On 31 July 1987, the applicant was arrested and confined by civil authorities for committing battery on two law enforcement officers.

4.  The applicant was counseled on eight separate occasions between 4 August and 11 December 1987 for the following offenses:

* missing work (two specifications)
* issuing dishonored checks due to insufficient funds (three specifications)
* being involved in family disturbances
* driving under the influence/driving on a suspended license
* failing to repair (on several occasions)

5.  He accepted nonjudicial punishment on three separate occasions for the following offenses:

* 31 August 1987 – failing to go to his appointed place of duty
* 11 December 1987 – being absent from his place of duty
* 8 January 1988 – being absent from his place

6.  On 9 February 1988, the applicant was notified he was being recommended for discharge for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  His commander cited conduct prejudicial to good order and discipline of the acceptable standards of personal conduct found in the Uniform Code of Military Justice as the basis for his recommendation.

7.  The applicant acknowledged receipt of the notification recommending his discharge.  After consulting with counsel, he elected not to submit a statement in his own behalf.

8.  On 31 March 1988, the appropriate authority approved the recommendation for discharge for misconduct – pattern of misconduct – under the provisions of Army Regulation 635-200, paragraph 14-12b.  He directed the issuance of a discharge under other than honorable conditions.

9.  On 15 April 1988, the applicant was discharged accordingly.  He completed 1 year, 11 months, and 10 days of net active service during this period.

10.  There is no evidence the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

11.  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 considered appropriate.

	b.  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.

	c.  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 have been noted and his supporting evidence has been considered.

2.  His records show he was counseled on numerous occasions as a result of his misconduct.  He accepted nonjudicial punishment on at least three separate occasions as a result of his numerous offenses.  Considering the nature of his offenses, the type of discharge he received properly reflects his overall record of service.

3.  The applicant has not shown error or injustice in the action taken by the Army in his case.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20130014604



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014604



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1