IN THE CASE OF:	   

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140000711 


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 discharge.

2.  He states, in effect, he is requesting an upgrade of his discharge due to the years that have passed since his discharge and due to medical reasons. 

3.  He provides no additional documentary 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.  On 28 December 1995, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist).  The highest rank he held was private first class/pay grade 
E-3.
3.  On 8 December 1997, he was barred from reenlistment.  The reasons given for this action were:  non-payment of just debts, being absent from multiple formations, being in improper uniform, criminal mischief in the second degree, and failing to permit vehicle safety inspection. 

4.  On 5 January 1998, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for unlawfully striking another Soldier.

5.  He received written general counseling on multiple occasions for issues including:  failure to provide support payment to his estranged wife; domestic violence; claim from a Mr. S that the applicant took his 15-year old daughter to a motel, got her drunk, and committed statutory rape; failure to provide vehicle for safety inspection, proof of insurance and registration; being absent from formation; and past due notice on debt.

6.  A medical examination, dated 2 March 1998, shows he was qualified for discharge.

7.  A Report of Mental Status Evaluation, dated 3 March 1998, shows the examiner found no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military medical channels and that he was mentally responsible.  He was cleared for any administrative actions deemed appropriate by his command.

8.  On 23 March 1998, the applicant's commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b for a pattern of misconduct.  He informed the applicant of his rights and that he was recommending separation because the applicant had two incidents of assault, failure to pay just debts, failure to go at the prescribed time to his appointed place of duty, and two incidents of disobeying a lawful order.  The commander indicated he was recommending the applicant be given a general discharge.  The applicant acknowledged receipt of the notification.

9.  On 23 March 1998, the applicant's commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b.  The reasons he gave for the recommended action were the applicant's:

* two incidents of assault
* failure to pay just debts
* failure to go at the prescribed time to his appointed place of duty
* two incidents of disobeying a lawful order

10.  On 7 April 1998, the applicant consulted with counsel who advised him of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He waived his rights.  He elected not to submit a statement in his own behalf.

11.  His commander and an intermediate commander recommended that he given a general discharge.

12.  On 4 May 1998, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, patterns of misconduct, and directed the issuance of a general discharge. 

13.  Accordingly, on 18 May 1998, the applicant was discharged with a general discharge due to misconduct after completing 2 years, 4 months, and 21 days of net active service. 

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

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included acts or patterns of misconduct.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	b.  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 meets the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization is clearly inappropriate.



DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support his request for an upgrade of the character of his service.

2.  The applicant was counseled on multiple occasions for issues including failure to provide support payment to his estranged wife; domestic violence; claim that he took a 15-year old girl to a motel, got her drunk, and committed statutory rape; failure to provide vehicle for safety inspection, proof of insurance and registration; being absent from formation; and past due notice on debt.  He received NJP for unlawfully striking another Soldier.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  Medical and mental examinations conducted in connection with his separation show there was no evidence of any medical issues that would have precluded the type of discharge he was given.

5.  The ABCMR does not grant requests for upgrade of discharges solely based on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request for upgrade of his 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)                                         AR20140000711



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ABCMR Record of Proceedings (cont)                                         AR20140000711



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