IN THE CASE OF: 

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130016928 


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 under other than honorable conditions discharge. 

2.  The applicant states:

* It has been over three years since his discharge
* He was not rehabilitated prior to his discharge
* He believes all Soldiers to include himself deserve a second chance

3.  The applicant provides no additional evidence.

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 27 August 1986.

3.  On 25 March 1992, the applicant received a letter of reprimand from his company commander for failing to perform his duties as a noncommissioned officer in a responsible manner.  Specifically, failing to keep his chain of command informed concerning his traffic violations, manage his personal finances, and repeated failures to be at his appointed place of duty.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 July 1994 for failing to go at the time prescribed to his appointed place of duty on three occasions and for being derelict in the performance of his duties.

5.  On 27 September 1994, the applicant received a General Officer Letter of Reprimand for driving while drunk and speeding on 21 August 1994.  

6.  The evidence contained in the applicant's records show the applicant was repeatedly counseled for failing to go to his scheduled appointments, failure to manage his personal finances, marriage, substance abuse, maintaining a telephone at his off-post residence, duty performance, and the commander's open door policy.

7.  On 28 September 1994, the applicant was evaluated at the request of his command for concerns about possible substance abuse problems.  He was subsequently referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

8.  On 11 October 1994, the applicant was notified of the initiation of separation action against him for patterns of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  He requested a personal appearance before an administration separation board, and he did not submit statements on his own behalf.

9.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that as a result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

10.  On 22 November 1994, having been advised by consulting counsel, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a general discharge under honorable conditions.

11.  On 30 November 1994, his group commander approved the applicant's request for conditional waiver requesting waiver of a personal appearance before a board of officers and a general discharge.

12.  The applicant received NJP under the provisions of Article 15 of the UCMJ on:

* 5 December 1994, for failing to go at the time prescribed to his appointed place of duty twice and for being derelict in the performance of his duties
* 21 December 1994, for wrongfully using cocaine between 11 and 
21 November 1994 

13.  The complete facts and circumstances surrounding the applicant's discharge are not available for review; however, evidence shows the applicant was discharged under Army Regulation 635-200, paragraph 14-12b, with an under other than honorable conditions discharge.  On 4 January 1995, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct.  He completed 8 years, 4 months, and 8 days of active military 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 that board's 15-year statute of limitations.

15.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  


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.

17.  Army Regulation 635-200, 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 contention that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge was carefully considered.

2.  The applicant appears to contend that since it has been over three years since he was discharged he should receive an upgrade.  However, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  The applicant also argues that he was not rehabilitated prior to his discharge for a pattern of misconduct and that he and all Soldiers deserve a second chance.  However, the evidence shows that he received countless opportunities to correct his behavior.  He was routinely counseled for his deficiencies, received   Company and General Officer Letters of Reprimand, NJP under the provisions of Article 15 of the UCMJ, and a referral to ADAPCP.

4.  On 22 November 1994, having been advised by consulting counsel, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a general discharge under honorable conditions.  The evidence appears to indicate the applicant was going to receive a general discharge, but he subsequently received NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty twice, being derelict in his duties, and for wrongfully using cocaine.


5.  The applicant's record of service clearly shows a history of misconduct.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct diminished the quality of his service.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130016928



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ABCMR Record of Proceedings (cont)                                         AR20130016928



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