IN THE CASE OF:	  

		BOARD DATE:	  23 July 2014

		DOCKET NUMBER:  AR20130020807 


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 (UOTHC) discharge.

2.  The applicant states he is a good citizen and he wants benefits.  He had minor offenses.

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, in pay grade E-1, on 14 March 1995.  He served as a food service specialist.  He was advanced to pay grade  E-2 on 14 September 1995.
3.  He received counseling on/for:

* 24 January 1996 – failing to report for physical training
* 7 March 1996 – failing to report for duty

4.  On 7 March 1996, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for making an official statement with intent to deceive.  

5.  He also received counseling on/for:

* 12 March 1996 – being extremely late for duty and possible punitive action under the UCMJ and/or separation which could result in a UOTHC discharge
* 18 March 1996 – failing to report for duty and possible punitive action under the UCMJ and/or separation which could result in a UOTHC discharge
* 24 September 1996 – failing to report back to duty after being directed to do so and possible punitive action under the UCMJ and/or separation which could result in a UOTHC discharge
* 27 September 1996 – failing to report for duty and possible punitive action under the UCMJ and/or separation which could result in a UOTHC discharge

6.  He was reported absent without leave (AWOL) on 1 October 1996 and returned to duty on 20 October 1996.

7.  He further received counseling on 5 November 1996 for leaving duty without any intentions of returning and without being dismissed by a noncommissioned officer.  Immediate UCMJ action was recommended.

8.  On 7 November 1996, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for patterns of misconduct, with a UOTHC discharge.  The company commander stated the reasons for the proposed action were the applicant's failures to report, AWOL, and false official statement.  He advised the applicant of his rights.

9.  On 7 November 1996, a staff judge advocate found the applicant's elimination packet to be legally sufficient.

10.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 9 November 1996, shows he was psychiatrically cleared for any administrative action deemed appropriate by the command.

11.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows trial proceedings, convened on 13 November 1996 informed him that the charges had been referred to a summary court-martial for trial.  He was advised of his rights.  The form indicated that he did not object to trial by summary court-martial.

12.  On 13 December 1996, the applicant's battalion commander recommended approval of the applicant's discharge.

13.  On 13 December 1996, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a UOTHC discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

14.  On 16 December 1996, the applicant’s brigade commander recommended approval of the applicant's UOTHC discharge.

15.  On 18 December 1996, the separation authority approved the applicant’s discharge.

16.  A DA Form 4187 (Personnel Action) shows he was reduced to pay grade   E-1 with an effective date of 13 November 1996.

17.  He was discharged in pay grade E-1 on 24 January 1997, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct.  He was credited with completing 1 year, 9 months, and 22 days of net active service and time lost from 1 to 19 October 1996.  His service was characterized as UOTHC.  

18.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12b - members are subject to separation for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  A UOTHC discharge was normally considered appropriate.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows the applicant received counseling for failing to report, AWOL, and making a false statement.  On 13 November 1996, the charges were referred to a summary court-martial trial.  

2.  His company commander initiated action to separate him for a pattern of misconduct with a UOTHC discharge.  He acknowledged the proposed separation and elected not to submit a statement in his own behalf.  The separation authority approved his discharge and as a result, on 24 January 1997, he was discharged accordingly.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits.




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)                                         AR20130020807





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ABCMR Record of Proceedings (cont)                                         AR20130020807



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