IN THE CASE OF:	  

		BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140003741 


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 under honorable conditions (general) characterization of service.

2.  The applicant states he was very young at the time of his discharge and does not want his discharge to haunt him for the rest of his life.  Additionally, he would like to be eligible for all the benefits to which an honorable characterization of service would entitle him.

3.  The applicant provides no 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 was born on XX December 1974 and enlisted in the Regular Army on 5 January 1994, at the age of 19.  He held military occupational specialty 35Q (Avionics Flights Systems Repairer) and attained the rank/grade of private first class (PFC)/E-3.  

3.  His record contains an undated letter from A and M Enterprises to his first sergeant (1SG), which states, in effect, numerous correspondence was sent to the applicant in an attempt to collect monies on a past due account.  The account was opened on 3 April 1996 and the last payment was made on 29 August 1997. The applicant currently had an unpaid balance of $530.86.

4.  His record contains a DA Form 4856 (General Counseling Form), dated 
12 November 1997, showing he was counseled for continued indebtedness.

5.  His record contains a court document, issued by the Commonwealth of Kentucky, on 15 May 1998, which shows that on or about 12 April 1998 he committed the offense of burglary, second degree, by unlawfully entering and remaining in the residence of JC, with the intent to commit a crime.  He also committed the offense of criminal mischief, third degree by causing less than $500.00 worth of damage to property owned by JC.  

6.  On 21 July 1998, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for writing a bad check at the Post Exchange, in the amount of $300.00.

7.  On 28 August 1998, he accepted NJP under the provisions of Article 15 of the UCMJ for unlawfully breaking and entering into the house of JC, on 12 April 1998, with the intent to commit larceny and wrongfully appropriating a television and stereo system, the property of JC, valued at more than $100.00.

8.  On 9 September 1998, he underwent a report of mental status evaluation.  The military psychiatrist who evaluated him reported his behavior was normal, he was fully alert and oriented, his mood/effect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The psychiatrist indicated that the applicant had the capacity to understand and participate in proceedings.  Additionally, the psychiatrist stated the applicant was psychiatrically cleared for any administrative action deemed appropriate by the chain of command.

9.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 9 September 1998, which show he was medically qualified for separation.

10.  On 16 September 1998, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12b, for "misconduct - a pattern of misconduct."  On the same date, he acknowledged receipt of his commander's intent to separate him for misconduct.  

11.  On 18 September 1998, he consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  The applicant acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He further acknowledged he understood that as a result of the issuance of a general under honorable conditions discharge he could be ineligible for many or all benefits as a veteran under Federal and State laws.

12.  On 22 September 1998, his immediate commander recommended that further counseling and rehabilitation efforts be waived and initiated separation action against him in accordance with Army Regulation 635-200, chapter 14, for misconduct.  

13.  On 6 October 1998, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14 -12b, for a pattern of misconduct and directed the issuance of a General Discharge Certificate.

14.  On 21 October 1998, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a general under honorable conditions discharge by reason of "misconduct."  He completed 4 years, 9 months, and 17 days of creditable active service.  

15.  There is no indication that he submitted a request to the Army Discharge Review Board within that board’s 15-year statute of limitations.

16.  Army Regulation 635-200, Section III (Acts or Patterns of Misconduct), paragraph 14-12b (A pattern of misconduct), in effect at the time, establishes policy and prescribes procedures for separating personnel for misconduct.  Soldiers are subject to separation per this section for a pattern of misconduct consisting of discreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  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. 

17.  Army Regulation 635-200, 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 contends his discharge should be upgraded because he was young and foolish at the time of his service.  Records show he was almost        23 years of age at the time of his offenses, and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

2.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  In view of the foregoing, there is insufficient evidence to grant the 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)                                         AR20140003741





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ABCMR Record of Proceedings (cont)                                         AR20140003741



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