BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130015562 


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 upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that there was no misconduct that deemed the issuance of a general discharge; it was simply a personal vendetta by his captain.  He was a good Soldier; he owns a business and he has not been in any trouble.  He was tested along with some others who were using marijuana and they tested positive; however, his test was clean.

3.  The applicant provides a four-page handwritten letter explaining his application and 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 on 15 November 1988 for a period of 4 years under the Army Civilian Acquired Skills Program for duty as a carpentry/masonry specialist and assignment to Europe.

3.  He completed his basic training at Fort Dix, New Jersey and he was transferred to Germany on 14 February 1989 for assignment to an engineer company.  He was advanced to the pay grade of E-4 on 1 February 1991.

4.  On 27 June 1991, the applicant’s commander initiated action to bar him from reenlistment.  He cites as the basis for his recommendation the applicant’s apathetic attitude toward the Army, his conduct and potential for advancement did not meet Army standards, and he was apprehended in the presence of known drug users with several different drugs found in the immediate area.  He also operated a privately owned vehicle while drunk, fraudulently obtained government quarters, and failed to properly clear housing. 

5.  The applicant elected to submit a rebuttal to the bar to reenlistment, but on
16 July 1991 the battalion commander approved the bar to reenlistment.  The applicant elected not to appeal the bar to reenlistmnent.

6.  On 12 August 1991, nonjudicial punishment (NJP) was imposed against the applicant by his battalion commander for operating a motor vehicle while drunk.

7.  A review of his official records shows the applicant was counseled repeatedly for writing bad checks, being disrespectful toward a noncommissioned officer (NCO), willful disobeying an NCO, failing to pay a German parking ticket, and inattentive driving which resulted in a motor vehicle accident. 

8.  On 15 January 1992, 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, chapter 14 for misconduct.  He cited as the basis for his recommendation the applicant’s NJP and repeated acts of misconduct as documented in counseling statements.

9.  After consulting with defense counsel the applicant indicated that he was submitting a statement in his own behalf; however, there is no indication in the available records to show that he did so.



10.  On 30 January 1992, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

11.  Accordingly, he was discharged under honorable conditions on 21 February 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of a serious offense.  He had served 3 years,
3 months, and 7 days of active service.

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

13.  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.

14.  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.
 
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 misconduct.  The applicant's overall service simply did not rise to the level of a fully honorable discharge.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized 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 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)                                         AR20130015562



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ABCMR Record of Proceedings (cont)                                         AR20130015562



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