IN THE CASE OF: 

		BOARD DATE:  26 August 2014

		DOCKET NUMBER:  AR20140001537 


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 his general discharge be upgraded to honorable.

2.  The applicant states:

	a.  He was denied legal representation and as a consequence he was sentenced to county jail for two weeks for his first offense of driving under the influence.  He was reduced in rank and discharged.  He is not sure why it took so long to get him out.

	b.  He believes he was used as an example by the new first sergeant.  He also believes he was a victim of someone abusing their authority.  Fifteen to twenty Soldiers were discharged at one time.  He requests an investigation and a full upgrade of his discharge to reflect his honorable service.

3.  The applicant did not provide any supporting documentation.

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 1 April 2004.  He held military occupational specialty 63M (Bradley Fighting Vehicle System Mechanic).  

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 9 (Awards, Decorations, and Campaigns), he was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and the Global War on Terrorism Service Medal; and

	b.  item 18 (Appointments and Reductions), the highest rank/grade he attained was private two (PV2)/E-2.

4.  He received a General Officer Memorandum of Reprimand (GOMOR) on 
20 March 2006.  The GOMOR shows he was cited on 23 February 2006 by Fort Stewart, Georgia, military police for drunken driving, attempting to elude a police officer, obstruction of justice, open container, and failure to maintain lane.

5.  On 6 July 2006, the applicant's immediate commander notified him of his intent to initiate separation action against him for patterns of misconduct.  The commander stated the reasons for this action were the applicant's violations of Article 86, Uniform Code of Military Justice (UCMJ), failure to report; Article 111 UCMJ, drunk while operating a motor vehicle; and Article 112a, wrongful use of marijuana.  He recommended the applicant receive a general discharge.

6.  On 6 July 2006, the applicant acknowledged receipt of the separation notification action, consulted with counsel, and he did not submit a statement on his own behalf.

7.  The applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12b, Patterns of Misconduct.  

8.  The applicant's battalion commander recommended approval of the discharge and that the applicant's service be characterized as general under honorable conditions.

9.  On 28 July 2006, the separation authority approved the applicant's discharge and directed he receive a general discharge.  
10.  On 8 August 2006, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 
14-12b, by reason of misconduct with his service characterized as under honorable conditions (General).  He had completed a total of 2 years, 4 months, and 8 days of creditable active duty service.

11.  On 12 June 2008, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  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 states 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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth policy and procedures followed by the Board.  The regulation states the Board will decide cases on the evidence of record. It is not an investigative body.





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged for a pattern of misconduct.  His commander reported the applicant committed several violations of the UCMJ and separation action was initiated against him.  

2.  The applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable based on the facts of the case.

3.  The applicant did not provide any evidence in support of his assertion that he did not receive legal representation or that he was a victim of abuse of authority.  

4.  The Board is not an investigative body.  It is the applicant's responsibility to prove his case.

5.  In view of the foregoing, there is 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 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)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20140001537



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