IN THE CASE OF:
BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130019008
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 upgrade of his general discharge.
2. The applicant states:
a. this was his first nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice. A prior one was dismissed when his counsel pointed out that the applicant was the victim;
b. since his discharge he has worked to get associate, bachelor and master's degrees; and
c. he would like to get a government job an upgrade would help speed up the process of obtaining a security clearance.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the letters of support and other documents that were presented at his Article 15 hearing.
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 Regular Army records are not contained in his Interactive Personnel Electronic Records Management System ((iPERMS) files. They were apparently available for the 7 June 2000 Army Discharge Review Board (ADRB) consideration of his case.
3. Following service in the Army National Guard and the U.S. Army Reserve the applicant enlisted in the Regular Army on 7 February 1996.
4. The ADRB Case Report indicates the applicant was notified of initiation of separation action. He appeared, with counsel, before a board of officers that recommended separation with a general discharge due to a pattern of misconduct. The discharge authority approved the board's recommendation. Accordingly, the applicant was so discharged on 6 June 1997.
5. On 7 June 2000 the ADRB denied the applicant's request to upgrade his discharge.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 members 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.
b. 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 appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldiers overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.
7. Army Regulation 15-185 sets forth the policy and guidance for the ABCMR. Paragraph 2-9 states the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. By regulation the Board is required to presume regularity and the applicant has the responsibility to provide convincing evidence to the contrary. Thus far, he has presented none.
2. In view of the foregoing, there is no basis for granting the applicant's 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) AR20130019008
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ABCMR Record of Proceedings (cont) AR20130019008
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