IN THE CASE OF:  

		BOARD DATE:   8 May 2014

		DOCKET NUMBER:  AR20130015741


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, from an under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was young, immature, and had an alcohol problem.

3.  The applicant provides no additional evidence in support of his request.

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.  On or about 28 February 1986, the applicant enlisted in the U.S. Army Reserve (USAR).  On 27 March 1986, he entered active duty for the purpose of completing his initial entry training.  On 11 July 1986, after completing his initial entry training, he was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist) and was released from active duty to the control of his USAR troop program unit of assignment.

3.  On 29 December 1987, he was discharged from the USAR for the purpose of immediate enlistment in the Regular Army.

4.  On 30 December 1987, at the age of 19, he enlisted in the Regular Army.  

5.  On 19 January 1988, he was assigned to the 48th Support Battalion, 2nd Armored Division, at Fort Hood, TX.  

6.  On 27 February 1989, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a noncommissioned officer (NCO), on or about      12 January 1989.

7.  On 9 May 1989, he accepted NJP, under the provisions of Article 15 of the UCMJ, for unlawfully striking a fellow Soldier, on or about 30 April 1989.

8.  On 9 June 1989, he was reported by his unit as absent without leave (AWOL). He remained AWOL unit he returned to military control on 12 June 1989.

9.  On 23 June 1989, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – pattern of misconduct.  The reason for the proposed action was, specifically, his previous receipt of NJP on two separate occasions and his attempted passing of several bad checks.  The applicant acknowledged receipt of the notification memorandum.

10.  On 26 June 1989, after consulting with counsel, the applicant requested a conditional waiver.  In his waiver request, the applicant waived consideration of his case by an administrative separation board if he was granted an under honorable conditions (general) discharge.

11.  On 19 July 1989, the approval authority disapproved his request for conditional waiver and directed he appear before an Administrative Separation Board.  

12.  On 20 July 1989, the applicant was notified that he would appear before an Administrative Separation Board.  The applicant acknowledged receipt of the notification memorandum.

13.  On 20 July 1989, after consulting with counsel, the applicant requested an unconditional waiver.  In his waiver request, the applicant waived consideration of his case by an administrative separation board without conditions.  He acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights.  He further acknowledged his understanding that he may receive an under other than honorable conditions discharge.  He elected not to submit statements in his own behalf.

14.  On 26 July 1989, the approval authority approved his request for an unconditional waiver and directed his discharge from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions discharge. 

15.  On 18 August 1989, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 6 months, and 29 days of net active service during this period of enlistment, and he had 21 days of lost time.  

16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It further sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

   a. Chapter 14 establishes the policies and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Although an honorable or general discharge is authorized, 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 contends his discharge should be upgraded because he was young and immature at the time of his service.  Records show that he was over 20 years of age at the time of his offenses.  Despite that, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.
 
2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  A discharge may be upgraded by this Board if it determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and accurately reflects his overall record of service.

4.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20130015741



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