IN THE CASE OF:	  

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019504 


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) to an honorable discharge (HD).

2.  The applicant states his discharge was inequitable because it was based on one minor isolated incident in 8 months and 24 days of service with no other problems.  He served 3 months of extra duty, 8 weeks without pay, and was confined to the base for the duration of the punishment.

3.  He provides no documentary 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 17 August 1999, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank he held was private one/pay grade E-1.

3.  He received both general and developmental counseling on multiple occasions for issues including being arrested for striking his fiancé, twice not reporting to his place of duty, failure to repair, and being absent from his assigned place of duty. 

4.  On 8 March 2000, he accepted nonjudicial punishment (NJP) imposed by his battalion commander under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for twice failing to go to his place of duty and for being absent without leave (AWOL) from his unit from 14 February to 1 March 2000.  He did not appeal the punishment.

5.  On 3 April 2000, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c for serious misconduct.  He informed the applicant of his rights and informed him that he was recommending separation because of the applicant's gross disregard for Army rules and regulations and his disruptive influence in the unit.  He further indicated the applicant had demonstrated an inability to comply with basic Soldiering requirements and higher authority.  He stated the applicant had received a field grade Article 15 for being AWOL and he was pending civilian court action for simple assault and domestic violence.  A conviction for that charge would possibly eliminate him from future service under the Lautenburg Amendment.  He stated the applicant's attitude and off duty performance were not in compliance with military standards and the whole Soldier concept.  He indicated he was recommending the applicant be given a general, under honorable conditions characterization of service.  The applicant acknowledged receipt of the notification.

6.  On 4 April 2000, he consulted with counsel who advised him of the basis for his contemplated separation for serious misconduct and its effects; the rights available to him, and the effect of a waiver of his rights.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He waived his rights.  He elected not to submit a statement in his own behalf.  

7.  On 4 April 2000, his commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  His commander and an intermediate commander recommended that he receive a GD.

8.  On 21 April 2000, a legal review was completed.  It shows it was found that the applicant committed a serious offense for which Army regulations authorized separation.  It stated that assault consummated by a battery was a violation of Article 128, UCMJ, the maximum punishment of which included a bad conduct discharge.  The administrative separation was legally sufficient.  The legal official concurred with the commander's recommendation that the applicant be separated for commission of a serious offense.  He further concurred and recommended the applicant be issued a GD.

9.  On 15 May 2000, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he be given a GD. 

10.  Accordingly, on 26 May 2000, the applicant was discharged with a GD due to misconduct after completing 8 months and 24 days of net active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 16 days of time lost.

11.  On 25 June 2009, the Army Discharge Review Board denied the applicant's request to upgrade his GD to an HD.

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 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.  

	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 available evidence does not support the applicant's request for an upgrade of his GD to an HD.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  The applicant was counseled on multiple occasions for negative actions, and he received NJP for twice failing to go to his place of duty and for being AWOL.  He was also pending civilian court action for simple assault and domestic violence.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, he is not entitled to an HD.

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)                                         AR20130019504



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ABCMR Record of Proceedings (cont)                                         AR20130019504



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