IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140005293 


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 a discharge upgrade.

2.  The applicant states:

* his discharge under other than honorable conditions should be upgraded because he did not commit a crime either while in the Army or after separation.
* his current discharge is negatively affecting his livelihood; stating, in effect, that after applying for a position he was informed by the prospective employer that he did not have an honorable discharge

3.  The applicant provides no additional supporting evidence with his application.

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 enlisted in the Regular Army on 5 November 1987.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 72E (Telecommunications Center Operator).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  Available records indicate the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by wrongfully operating a privately-owned vehicle without a license.

4.  Available records indicate the applicant was counseled for having a total of
7 traffic violations, for failing to pay for 7 parking violations, and for writing checks totaling $172, for which there were insufficient funds in his bank account.

5.  On 8 June 1990, the applicant underwent a mental status evaluation and the results showed he demonstrated:

* normal behavior
* he was fully alert and oriented
* an unremarkable mood or affect
* a clear thinking process
* normal thought content
* good memory
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible and met the requirements for retention found in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)

6.  In an undated memorandum, the applicant's unit commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, section III, paragraph 14-12b and c.  In his notification, the commander:

* enumerated the incidents of misconduct he was using as a basis for this action
* stated his intent to recommend a general discharge under honorable conditions
* advised the applicant of his rights to counsel, to submit written statements, and to request a hearing before an administrative separation board
7.  In an undated response to the unit commander's notification, the applicant submitted a rebuttal letter stating, in effect:

* his desire to be granted an honorable rather than general discharge
* his goals in entering the Army were to do his best and advance his education
* he served proudly during exercises such as CARAVAN GUARD 88 89 and REFORGER 89 90 and achieved one of the highest Skill Qualification Test scores in his unit
* he regretted and took responsibility for the incidents cited as the basis for this action
* he stated he was under a lot of personal stress due to his wife's troubled pregnancy

8.  There is no evidence the applicant either sought the advice of counsel prior to submitting his rebuttal letter or requested an administrative board.

9.  In an undated endorsement, the separation authority directed the applicant be discharged with a general discharge under honorable conditions.  On 3 August 1990, the applicant was discharged accordingly.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he received a general discharge with a character of service reflecting under honorable conditions.  It shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "misconduct – pattern of misconduct."  It also shows he completed 2 years, 8 months, and 29 days of creditable active service.

11.  There is no indication the applicant 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 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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an honorable discharge or general discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions of the regulation.

	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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge because he committed no crimes either while on active duty or following separation.  The pattern of misconduct evidenced in his record, however, does not support his contention.  

2.  While the ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant better eligible for employment, a change in type of discharge may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation are presumed to have been met and the rights of the applicant were fully protected throughout the separation process.

4.  It appears his command considered the applicant's service and the circumstances of his discharge, as he could have received an under other than honorable conditions discharge.  The applicant's disciplinary history clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  Accordingly, there is no basis upon which 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)                                         AR20140005293





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ABCMR Record of Proceedings (cont)                                         AR20140005293



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