BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140004541 


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) discharge to fully honorable and issuance of an Honorable Discharge Certificate.

2.  The applicant states he did not receive an Honorable Discharge Certificate.

3.  The applicant provides 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 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's records show he enlisted in the Regular Army on 29 January 1998 and he held military occupational specialty 92G (Food Service Specialist). He served in Germany from 1 July 1998 to on or about 28 January 1999.  He was awarded or authorized the Army Service Ribbon. 

3.  His records show he was frequently counseled by members of his chain of command for various infractions, including: 

* smell of alcohol during the performance of his duties
* revocation of pass privileges
* being absent without leave (AWOL)
* extensive history of failing to report to duty
* being disrespectful to a noncommissioned officer 
* deficient behavior and conduct
* being late to formation
* failing to follow instructions

4.  On 20 August 1998, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* failing to go at the time prescribed to his appointed place of duty on five separate occasions
* willfully disobeying a lawful order on two separate occasions

5.  On 23 December 1998, he was convicted by a summary court-martial of one specification of being AWOL from 29 November 1998 to 16 December 1998.  The court sentenced him to confinement, a forfeiture of pay, and a reduction. 

6.  On 11 January 1999, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct - pattern of misconduct.  Specifically, the immediate commander cited the applicant’s failing to report, disobeying orders, and being AWOL.  

7.  On 11 January 1999, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he 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 that were available to him.  He waived consideration of his case by an administrative separation board and waived a personal appearance before an administrative separation board contingent upon receiving a characterization of service no less favorable than an under honorable conditions, general.  He also elected not to submit a statement on his own behalf.  He acknowledged that:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him
* he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws

8.  The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct - pattern of misconduct, with the issuance of an honorable discharge. His intermediate commander recommended approval of the separation action for misconduct with the issuance of an honorable discharge.

9.  The separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - pattern of misconduct and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 29 January 1999.

10.  The DD Form 214 he was issued confirms he was discharged on 29 January 1999 in accordance with chapter 14 of Army Regulation 635-200 with a general, under honorable conditions discharge.  This form further confirms he completed a total of 1 year and 1 day of creditable active military service.

11.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct - 
commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

13.  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 evidence of record shows the applicant had a history of disciplinary problems including one instance of AWOL, one court-martial conviction, one instance of NJP, and an extensive history of negative counseling.  As a result, his chain of command initiated separation action against him for pattern of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  He did not receive an Honorable Discharge Certificate because his discharge was not characterized as honorable.  Although the chain of command recommended an honorable discharge, the separation authority ordered his service be characterized as under honorable conditions (general).  

3.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to 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)                                         AR20140004541





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ABCMR Record of Proceedings (cont)                                         AR20140004541



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