IN THE CASE OF 

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000132 


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, under honorable conditions discharge.

2.  The applicant states that he served with the 42nd Aviation Battalion in the Army National Guard (ARNG) for a period of 5 years, and 1 year on active duty in the Regular Army (RA).

   a.  He states that he entered active duty with the intent of pursuing a military career.  He adds that he was a good Soldier and never disrespected the uniform.

   b.  He learned that his wife was cheating on him, he made a very poor decision, and hurt the individual involved with her (who was a good friend of his at the time).  He has since reached out to that individual and apologized, the individual has accepted his apology, and they are now good friends again.

   c.  He regrets his actions and affirms his love for his country.

3.  The applicant provides no documentary evidence in support of his application.

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 ARNG of the United States and New York ARNG on 21 May 1981.  He completed active duty training and was awarded military occupational specialty 67V (Observation/Scout Helicopter Repairer).  He attained the rank of private first class/pay grade E-3.

3.  He enlisted in the U.S. Army Reserve on 15 July 1985 and he further enlisted in the Regular Army (RA) on 4 October 1985 for a period of 4 years.

4.  He was counselled by his superior noncommissioned officers on three occasions (i.e., 11 March, 29 April, and 14 August 1986) for failure to pay just debts.

5.  The applicant accepted nonjudicial punishment (NJP) -

* on 24 March 1986, for writing worthless checks
* on 4 September 1986, for larceny in the amount of $140.00

6.  On 13 November 1986, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 
635-200 (Enlisted Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct.  The applicant was advised of his rights and the separation procedures involved.

7.  The applicant consulted with legal counsel and was advised of the rights available to him.

	a.  He acknowledged that he was not entitled to have his case considered by an administrative separation board because he had less than 6 years of military service.

	b.  He acknowledged that military legal counsel for consultation was available to assist him and requested an appointed military legal counsel for consultation.

   c.  He indicated that he would submit statements in his own behalf; however, his separation packet does not contain any such statements.
	d.  He was advised that he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him.  
   
   e.  He was informed that, if he received a general, under honorable conditions discharge, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrade of his discharge.  However, an act of consideration by either board did not imply his discharge would be upgraded.

	f.  The applicant and his counsel placed their signatures on the document.

8.  The commander recommended approval of the applicant's separation action. He also recommended that the rehabilitative requirements be waived based on the fact that retaining the applicant on active duty would continue to allow him the opportunity to create a disruptive influence on other Soldiers.

9.  The separation authority approved the recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, with a General Discharge Certificate.
	
10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 November 1986 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct based on a pattern of misconduct.  His service was characterized as under honorable conditions (general).  He had completed 1 year, 1 month, and 22 days of net active service this period; 5 months and 24 days of total prior active service; and 3 years, 10 months, and 19 days of total prior inactive service.

11.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the ADRB for review of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, 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 serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall records.
 	b.  Chapter 3, 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 contends that his discharge should be upgraded because he completed 5 years of military service and 1 year on active duty, he was a good Soldier, and he regrets his poor decision that led to his discharge.

2.  The applicant's prior period of honorable enlisted service in the ARNG is acknowledged.  However, that prior of period of service in the ARNG is not at issue nor is it under review in this instance.

3.  Records show the applicant enlisted in the RA on 4 October 1985 and he was discharged under honorable conditions on 25 November 1986 after completing 
1 year, 1 month, and 22 days of active duty.

4.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were appropriate and equitable.

5.  The applicant's military personnel records show he was repeatedly counselled for failure to pay just debts and he received NJP on two occasions (for writing worthless checks and larceny).  Thus, his contention that he was a good Soldier and that he made a (i.e., one) poor decision (emphasis added) is not supported by the evidence of record.  In addition, he only completed about 14 months of his 3-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.
   
6.  Therefore, there is an insufficient basis for granting the requested relief.


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)                                         AR20140000132



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000132



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1