IN THE CASE OF:  	  

		BOARD DATE:  18 September 2014    	  

		DOCKET NUMBER:  AR20140002238 


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 to an honorable discharge.

2.  The applicant states:

   a.  With the exception of one Article 15, his military service was honorable.  He was not aware that he could request an upgrade.  

   b.  He would like to enroll in the Department of Veterans Affairs (VA) healthcare system and be able to apply for jobs utilizing an honorable discharge. In the six years plus that he served in the Army.  His performance evaluations will show that he was an above-average Soldier.  He made one mistake during his service for which he received an Article 15 and for which he is remorseful.  He was young and inexperienced, he used poor judgment, and he would not make this mistake again if given the opportunity.  He respectfully requests that the Board consider his entire service and grant an honorable discharge.  

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 5 June 1991 on 6 June 1991.  At the time of his enlistment, he was 18 years, 6 months, and 15 days of age.  

3.  He served in military occupational specialties 45K (tank turret repairer) and 95B (military police).  He was promoted to pay grade E-4 on 1 August 1993.  He served in Germany from 1 January 1992 through 13 September 1993.

4.  He was honorably discharged on 29 January 1995 for the purpose of immediate reenlistment.  He reenlisted in the RA on 30 January 1995.  He served in Hawaii from 19 October 1995 through 18 October 1998.

5.  He received counseling on/for:

* 18 March 1997 – failing to appear at the appointed place of duty at the appointed time
* 19 April 1997 – uttering worthless checks
* 7 May 1997 – follow through of monthly finance sheet and not being at his appointed place of duty at appointed time
* 30 May 1997 – failing to be at the appointed place of duty at appointed time and displaying a negative attitude
* 6 June 1997 – failing to be at the appointed place of duty at appointed time and rehabilitation for his actions
* 7 June 1997 – monthly counseling and non-recommendation for promotion

6.  In October 1997, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully distributing intoxicating liquor on or about 3 October 1997 to a female Soldier who at the time of the incident was under the age of 21.  His punishment included a reduction to pay grade E-3 and 14 days of extra duty and restriction.  He did not appeal.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 26 November 1997, shows his behavior was normal.  He was fully alert and fully oriented.  His mood was unremarkable.  His thinking process and thought content were clear.  He was psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  On 11 December 1997, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 14, for patterns of misconduct, with a general discharge.  The company commander stated the reasons for the proposed action were the applicant's Company Grade Article 15; negotiating a worthless instrument on 3 February 1997; and failures to report on 18 March, 7 and 30 May, and 5 June 1997.  He advised the applicant of his rights.

9.  On 11 December 1997, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  On 12 December 1997, the applicant’s battalion commander recommended approval of the applicant's general discharge.

11.  On 5 January 1998, the separation authority approved the applicant’s discharge.

12.  He was discharged accordingly in pay grade E-3 on 13 March 1998.  He was credited with completing 6 years, 9 months, and 9 days of net active service.  His service was characterized as under honorable conditions (general).  

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

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-12b - members are subject to separation for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  A discharge under other than honorable conditions (UOTHC) was normally appropriate for a Soldier discharged under that chapter.   However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.
   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received counseling for negotiating a worthless instrument and several failures to report.  He was punished under Article 15 for misconduct and reduced from pay grade E-4 to    E-3.  His company commander initiated action to separate him for a pattern of misconduct with a general discharge.  He acknowledged the proposed separation.  The separation authority approved his discharge and as a result, on 13 March 1998, he was discharged accordingly.

2.  His contention that he was young at the time was carefully considered.  However, he was 18 years, 6 months, and 15 days of age at the time of his enlistment.  He was 24 years, 10 months, and 12 days of age at the time of the incident resulting in the Article 15.  There is no evidence he was any less mature than any other Soldier who successfully completed their term of service.

3.  It appears that based on his overall record it was directed he receive a general discharge.  Normally such service as his would be characterized as UOTHC.

4.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to the requested relief.

6.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits from the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for VA benefits.


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)                                         AR20140002238





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ABCMR Record of Proceedings (cont)                                         AR20140002238



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