IN THE CASE OF:	

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20140000205 


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 to an honorable discharge.

2.  The applicant states he knows that he did wrong at the time and understands completely his faults and punishment.  In no way does he think that he did not do any wrong.  At the time, he was having family and money issues which he tried to speak to his leadership about with no help.  He has learned from what he did and it is something he would never think about doing again.  He is hoping his exemplary service record beginning in 2006 with no disciplinary actions and his post-service record can provide for an upgrade of his discharge to an honorable discharge.

3.  The applicant provides copies of the following:

* DA Form 4856 (Developmental Counseling Form)
* DD Form 458 (Charge Sheet)
* DD Form 3329 (Record of Trial by Summary Court-Martial)
* Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, documentation 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the Department of Veterans Affairs (VA)




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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Alabama Army National Guard (ALARNG) on 28 September 2005.  He entered on active duty for training on 6 June 2006.  He was honorably released from active duty on 14 November 2006 and was transferred to the ALARNG.

3.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 3 July 2007.  He was honorably released from active duty on 11 May 2008 and was transferred to the ALARNG.

4.  He was honorably discharged from the ALARNG on 14 November 2006 for the purpose of enlistment in another component of the Army Forces.

5.  He enlisted in the Regular Army (RA), in pay grade E-4, on 5 May 2009 and he reenlisted in the RA on 31 December 2011.  He served in Afghanistan from 26 February 2011 through 9 January 2012.

6.  His record contains and he provided copies of the following:

   a.  A DA Form 4856, dated 7 November 2012, wherein his commander directed he undergo a mental health evaluation because of an Army Regulation  635-200, paragraph 14-12c, request.  The form stated he had been counseled on 13 September 2012 on being recommended for separation.  The company commander questioned him on 12 September 2012 in regard to the suspected offenses of making a false official statement, falsifying permanent change of station orders, forgery, and writing bad checks.  The company commander was initiating action to separate him from the U.S. Army.

   b.  A DD Form 458, dated 22 October 2012, wherein he was charged with one specification each of:
* making a false statement with intent to deceive
* wrongfully and unlawfully making a payment knowing he did not or would not have sufficient funds for the payment
* dishonorably failing to pay said debt on 1 August and 1 September 2012 and said conduct bringing discredit upon the armed forces

   c.  A DD Form 3329 which shows on 11 December 2012 he was convicted by a summary court-martial of dishonorably failing to pay said debt on 1 August and 1 September 2012.  He was sentenced to a reduction to pay grade E-3 and confinement for 10 days.  His sentence was approved on 13 December 2012.

7.  On 15 January 2013, the applicant’s company commander initiated action against the applicant to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  He stated the reasons for the recommended action were the applicant giving a false official statement, wrongfully writing a check without sufficient funds, and dishonorably failing to pay a past due debt on or about 1 August and 1 September 2012.

8.  On 15 January 2013, the applicant acknowledged receipt of the proposed separation, waived his right to counsel, and elected not to submit a statement in his own behalf.   

9.  On 30 January 2013, the applicant's battalion commander recommended approval of the applicant's discharge with a general discharge.

10.  On 4 February 2013, the Staff Judge Advocate found the separation action to be legally sufficient.

11.  On 12 February 2013, the separation authority approved the applicant’s discharge.

12.  He was discharged accordingly in pay grade E-3 on 1 March 2013.  He was credited with completing 3 years, 9 months, and 17 days of net active service.  His service was characterized as under honorable conditions, general.  He was also credited with completing 1 year, 4 months, and 20 days of prior active service and 2 years, 2 months, and 17 days of prior inactive service.

13.  On 11 December 2013, the Army Discharge Review Board denied his request for an upgrade of his general discharge.

14.  He also provided a copy of a letter from the VA, dated 23 November 2013, which stated he served in the Army for the following periods:
* 6 June 2006 through 14 November 2006, his service was characterized as honorable
* 3 July 2007 through 11 May 2008, his service was characterized as honorable
* 5 May 2009 through 1 March 2013, his service was characterized as under honorable conditions

15.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 14-12c – Soldiers will be separation for the commission of a serious offense to include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions is normally considered appropriate; however, a general, under honorable conditions, or an honorable discharge may be granted.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a summary court-martial on 11 December 2013 of serious offense of misconduct.  As a result the applicant's company commander initiated action to separate the applicant.  The applicant's battalion commander directed the issuance of a general discharge.  The separation authority approved his discharge and he was discharged accordingly on 1 March 2013.

2.  It appears that based on his overall record he was separated in pay grade E-3 and it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

3.  He provided no evidence or a convincing argument to show his general discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct and conviction by a court-martial during his period of active duty from May 2009 to March 2013 diminished the quality of his service below that meriting a 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 an upgrade of his general discharge.

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)                                         AR20140000205





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ABCMR Record of Proceedings (cont)                                         AR20140000205



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