IN THE CASE OF:	

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000912 


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, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he checked his records on the Department of Veterans Affairs personal health records website and it appeared that his discharge was upgraded to honorable.

3.  The applicant did 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 15 September 1988.

3.  His military record contains a DA Form 4126-R (Bar to Reenlistment Certificate) that shows he accepted nonjudicial punishment (NJP) on:

	a.  21 July 1989 for failing to be at his appointed place of duty;

	b.  19 March 1990 for failing to be at his appointed place of duty; and 

	c.  1 May 1990 for failing to be at his appointed place of duty.

4.  The DA Form 4126-R also includes the following statement:  "Soldier is apathetic towards Army standards and persistent to not being able to appear at announced formations.  Soldier has been counseled numerous occasions on unit standards."

5.  His military record also contains several DA Forms 4856 (General Counseling Form) that indicate he was counseled on numerous occasions during the period 2 December 1991 - 4 March 1992 for infractions that include missing physical training formations, writing bad checks, late for formation, and failure to pay just debts.

6.  On 25 March 1992, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 
14-12b for a pattern of misconduct.  He was recommended to receive a general, under honorable conditions characterization of service.  The reasons cited for the proposed separation action were the applicant's failure to repair on several occasions and his failure to pay just debts.  He was advised of his right to:

* consult with legal counsel or with civilian counsel at his own expense
* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority that supported the proposed separation action
* waive his rights in writing

7.  He consulted with counsel and elected not to submit statements in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He acknowledged he understood that if he received General Discharge Certificate, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.
8.  On 6 March 1992, the appropriate separation authority approved the recommendation and directed the issuance of a General Discharge Certificate.  On 14 April 1992, he was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Misconduct - Pattern of Misconduct."

9.  The ADRB denied his requests for an upgrade of his discharge on 22 April 1997 and on 5 June 1998.

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 consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, and convictions by civil authorities.  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.  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 request for an upgrade of his discharge has been carefully considered.

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His disciplinary history includes NJP on three occasions and several counseling statements for a number of infractions.  This record of indiscipline clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support granting the requested relief.

4.  In view of the foregoing, there id no basis for granting the applicant's 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)                                         AR20140000912



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ABCMR Record of Proceedings (cont)                                         AR20140000912



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