IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140002022 


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 general discharge.

2.  The applicant states:

* while out on a field problem, he was taking pills that were supplied to him from a medic for a strained back
* one of the Soldiers with him on the field problem notified his platoon sergeant that he was taking drugs when he was around them
* he was questioned by his platoon sergeant and he presented him and a present staff sergeant with the paperwork from the medic that stated the reason he needed to take the pills
* he was told that it was unbecoming of a noncommissioned officer (NCO) to take pills while he was around junior enlisted Soldiers
* he had a pregnant "wife to be" in Hinesville, GA and he travelled back and forth between Hunter Army Airfield and Hinesville to check on her
* he would always make sure he was not on any duty roster before leaving for the weekend
* he was on a duty roster on 9 December 1995; however, he was not notified of the changes to the roster
* his platoon sergeant and the staff sergeant he worked with both had his contact number and it was "strange" that for this situation, they both claimed they did not
* he wishes he had known someone at that time to help him because it led to him drinking alcohol pretty regularly 
* he eventually received a driving under the influence (DUI) conviction that led to his release from active duty for misconduct
* the appearance of the word "misconduct" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) labels him a bad Soldier
* he never had any issues with his supervisors in the past and he has been greatly punished by losing everything he worked for 
* he should not be labeled as a Soldier who committed misconduct for the rest of his life, as it has hindered him when applying for government jobs

3.  The applicant provides a copy of his DD Form 214 and a self-authored statement.

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 14 April 1988, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).  On 15 May 1991, he reenlisted in the Regular Army and on  1 April 1994, he was promoted to sergeant/E-5.

3.  On 25 August 1995, he was counseled for being arrested for DUI.

4.  On 29 August 1995, he received a general officer memorandum of reprimand (GOMOR) for misconduct related to his DUI arrest.

5.  The facts and circumstances pertaining to his discharge are not available; however, his DD Form 214 shows he was discharged on 15 February 1996, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, due to misconduct.   He completed 7 years,     10 months, and 2 days of net active service this period and he received a general discharge.

6.  The available records do not show he applied to the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 (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.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  Although a discharge under other than honorable conditions was normally considered appropriate for the authority and reason for his discharge, it appears the separation authority considered his overall record of service and determined that his separation warranted a general discharge.


3.  He has not shown error or injustice in the type of discharge he received nor the stated reason for his discharge, and his inability to gain government employment is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140002022



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ABCMR Record of Proceedings (cont)                                         AR20140002022



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