BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017333 


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 general discharge (GD) under honorable conditions to an honorable discharge (HD).

2.  The applicant states he would like his GD upgraded to an HD.

3.  The applicant provides no additional documents.

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's military records show he enlisted in the Regular Army on 26 June 1992.  He held military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic).

3.  His records shows he was formally counseled 6 times during the period 26 February to 6 April 1993 for different disciplinary infractions that included:

* failing to report to formation (three separate occasions)
* failing to start corrective training
* receipt of an Article 15
* failure to obey an order

4.  The applicant's records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on 16 March 1993, for being absent without leave (AWOL) from accountabiity formation on 5 March 1993.

5.  His record includes three traffic citations issued him for driving under the influence (DUI) of alcohol in:

* Statesboro, Texas with a blood alcohol content (BAC) of .19 on 6 April 1993
* Hinesville, Texas with a BAC of .12 on 7 July 1993
* Pembroke, Texas with a BAC of .17 on 2 November 1993

6.  On 20 October 1993, the applicant underwent a mental status evaluation that showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings

7.  On 4 November 1993, the unit commander notified the applicant that he was initiating action to separate him under honorable conditions under the provisions Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  The commander cited the applicant's AWOL and two DUI offenses (at the time) as the basis for the separation action.

8.  On 5 November 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights indicating his options to:

   a.  waive consideration of his case by a board of officers contingent upon receiving a characterization of service no less favorable than a GD; and
   
	b.  not to make a statement in his own behalf.

9.  On 16 November 1993, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a GD.

10.  On 23 November 1993, the applicant was discharged from the Army.  His DD Form 214 shows he was discharged under honorable conditions (general) by reason of "misconduct" under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 1 year, 4 months, and 28 days of creditable active duty service.

11.  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.

12.  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 personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An HD or a GD may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.

	b.  Paragraph 3-7a provides that an HD 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 evidence of record confirms the applicant's disciplinary history includes 1 NJP, 3 traffic citations for DUI, and 6 counseling statements for various infractions.  Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD.

2.  The evidence of record also confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20130017333





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ABCMR Record of Proceedings (cont)                                         AR20130017333



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