BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000494 


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 that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for a second offense, but he appealed it on the basis that the charges against him were false and had no basis.  The defendants were a group of individuals who held a grudge against him.  He also had a case against them for drug use, but the case never went through because he was discharged.  He admits that he committed the first offense, but contends that he was discharged for standing up to drug usage and framed for a crime.  He served his country for a limited time, but was hoping for more.  Since then he has improved his life and wants to be considered a veteran who served honorably.

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's record shows he enlisted in the Regular Army on 14 October 1987.  Upon completion of initial entry training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, at the time of his separation he held the rank/grade of private (PV1)/E-1.

3.  His military service record reveals he had several adverse counseling sessions for:

* rendering checks with insufficient funds
* failing to manage his finances and pay his debts
* losing his identification card
* selling government property
* stealing and selling the personal property of another Soldier

4.  His disciplinary history includes his acceptance of field grade level NJP under the provisions of Article 15, UCMJ on two occasions on the dates shown for the following offenses:

* 3 October 1988, for selling government property to another Soldier
* 18 January 1989, for stealing the personal property of one Soldier and selling it to another

5.  On 22 March 1989, the applicant's unit commander rendered a Memorandum for Record wherein he summarized the counseling he had conducted with the applicant regarding:

* stealing his roommate's sunglasses and selling them to another Soldier
* two previous acts of misconduct which indicated he had not learned from his mistakes
* cashing numerous checks totaling over $1,000 which were returned for insufficient funds
* selling government property to another Soldier
* in spite of being given numerous opportunities, he had betrayed his unit's trust and confidence in him as a co-worker and Soldier
* he demonstrated that he could not be trusted and was not worthy of retention in the military service
* the unit commander's intention to recommend the applicant be discharged from the service

6.  On 30 March 1989, the applicant's unit commander recommended that he be barred from reenlistment in the Army for the aforementioned reasons.  The bar was approved on 6 April 1989 and the applicant elected not to appeal the bar on the same date.

7.  On 28 April 1989, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for serious misconduct:  being found guilty of larceny of government and personal property and amassing $1,800 worth of dishonored checks on his account.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and his right to consult with counsel.

8.  He consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

9.  The unit commander subsequently recommended that the applicant be separated from the service based on his commission of serious offenses.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

10.  The applicant rendered a statement wherein he appealed to the separation authority to allow him to remain in the Army.  He stated that he had accepted NJP for his offenses and had served his time for both of them.  He admitted that it was not sensible of him to perform those acts of crime, he had learned from his mistakes and hoped that the Army would allow him to redeem himself instead of separating him.  He contended that he had a lot to offer the Army, his superiors had no complaints about his work performance, and he had an excellent working relationship with his co-workers.  The applicant made no reference to being subjected to reprisal or coercion in his statement.

11.  On 8 May 1989, the separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He determined his service would be characterized as under honorable conditions and that he would be issued a General Discharge Certificate.

12.  On 25 May 1989, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

* his service was characterized as under honorable conditions
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* his narrative reason for separation was "Misconduct - Commission of a Serious Offense"

13.  The applicant's record is void of any evidence and he has not provided any evidence showing that he was involved in any type of investigation into alleged drug abuse by other individuals or that he was the victim of reprisal in any way. 

14.  There is no indication that the applicant petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  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.

16.  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's record is void of any evidence and he has not provided any evidence showing that he was involved in any type of investigation into alleged drug abuse by other individuals or that he was the victim of reprisal in any way. 

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20140000494





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ABCMR Record of Proceedings (cont)                                         AR20140000494



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