BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130021722 


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 his general discharge be upgraded to honorable.

2.  He states he got out of the Army due to depression.  He wants to go to school.  He was a good Soldier, but made some mistakes.  Disrespecting an officer or a staff sergeant should not preclude him from receiving his benefits.

3.  He does not provide any 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 13 November 1997.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on
17 February 2000 for:

* being absent without leave (AWOL) on two separate occasions: 
2 to 8 February 2000 and 10 to 12 February 2000
* missing company movement on 5 February 2000
* willfully disobeying a lawful order from a superior commissioned officer on 15 February 2000 

4.  On or about 29 February 2000, the battalion commander notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, commission of a serious offense.  Specifically, he cited the applicant's two incidents of AWOL, missing movement, disrespect to a noncommissioned officer, and willfully disobeying a commissioned officer as the basis for the discharge action.

5.  On 29 February 2000, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf.  He acknowledged he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

6.  On an unknown date, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 
14-12c, with an under honorable conditions, general discharge.

7.  On 5 April 2000, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct, with a characterization of service of general under honorable conditions.  He was credited with completing 2 years, 4 months, and 15 days of total active service with time lost.

8.  On 4 May 2009, he appealed to the ADRB for an upgrade of his discharge.  On 26 February 2010, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.
9.  His record is void of any evidence to show he suffered with depression.

10.  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, commission of a serious offense, and abuse of illegal drugs.  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 Soldier’s overall record.

   b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded to honorable so he can receive benefits.

2.  Additionally, he argues that his depression caused his indiscipline.  There is no evidence and the applicant did not provide any to show he suffered with depression.

3.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

4.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs (VA).

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)                                         AR20130021722





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130021722



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1