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ARMY | BCMR | CY2014 | 20140001573
Original file (20140001573.txt) Auto-classification: Denied

	

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140001573 


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.

2.  The applicant states he was very young and easily influenced during his time in the military.  He made some very poor decisions that are still affecting him today.  He feels he was unfairly discharged.  He did not understand the consequences of his actions and how they would affect his future.  He contends that he had no representation at the time of his discharge, but believes if he had been represented the outcome would have been different.  He received nonjudicial punishment (NJP) and restrictions while in the military. So, in a sense, he was punished for the same offense through different avenues.  He joined the Army to serve his country with honor and pride.  Now, he is requesting a review of his records to clear his name and restore his honor.  He is the father of three and a loving husband and nothing would make him more proud than to be buried with honor.

3.  The applicant provides no additional 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.  On 25 October 1995, the applicant, at just over 19 years of age, enlisted in the Regular Army.  He completed his initial training as a combat engineer.

3.  On 22 February 1996, the applicant was assigned to the 64th Engineer Battalion located at Fort Lewis, WA.

4.  On 12 June 1996, the applicant was counseled for damaging/defacing his military identification card by altering its information.

5.  On 24 October 1996, the applicant received a citation for indecent exposure.

6.  On 5 November 1996, the applicant was counseled by his noncommissioned officer (NCO) for both offenses discussed above. The NCO stated that he was recommending him for summarized NJP.

7.  On 12 March 1997, a mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible and capable of participating in separation proceedings.

8.  On 26 March 1997, the applicant accepted NJP for wrongful use of marijuana.

9.  On 16 April 1997, the applicant's company commander notified him that he was intending to take action to effect his discharge for a pattern of misconduct.  The commander cited the applicant's positive testing for marijuana use, his indecent exposure incident, and his alteration of his military identification card.  He was advised of his right to consult with legal counsel, and he acknowledged such advisement.

10.  On 29 April 1997, the applicant consulted with counsel concerning his rights.  He elected to make a statement in his own behalf, but it is not contained in the available record.  He requested representation by counsel.

11.  On 29 April 1997, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to a pattern of misconduct as discussed above.  He requested a waiver of further rehabilitative efforts.

12.  On 20 May 1997, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a DD Form 257A (General Discharge Certificate).

13.  On 6 June 1997, the applicant was accordingly discharged.  He had completed 1 year, 7 months, and 12 days of creditable active duty service.

14.  There is no indication that the applicant 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 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.

   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded because he was young and made some poor decisions at the time.  He further contends that had he been afforded representation his discharge might have been different.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The evidence of record indicates that he did consult with counsel.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.


4.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 19 years of age when he enlisted.  He had satisfactorily completed training, thus demonstrating his capacity to serve.  He was no younger or immature than most other Soldiers who completed their terms of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

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

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)                                         AR20140001573





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ABCMR Record of Proceedings (cont)                                         AR20140001573



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