IN THE CASE OF:	   

		BOARD DATE:	  29 October 2014

		DOCKET NUMBER:  AR20140005368 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states he:

* served honorably in the Army National Guard, the U.S. Army Reserve (USAR), and the U.S. Army
* was promoted several times
* received multiple awards
* served three tours of combat duty
* was young and immature at the time of the discharge

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for service from 3 December 1990 to 28 January 1994
* National Guard Bureau (NGB) Form 22E (National Guard Report of Separation and Record of Service)
* DD Form 214 for service from 24 July 2005 to 11 June 2006
* DD Form 214 for service from 12 June 2006 to 11 June 2012





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 3 December 1990, at the age of 19.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions for the below listed offenses:

* 22 January 1993, for failure to be at his appointed place of duty 
* 16 March 1993, for willfully disobeying an order prohibiting his driving privileges for one year
* 15 September 1993, for unlawfully carrying a concealed weapon
* 13 December 1993, for failure to obey a lawful written order further suspending his driving privileges by another two years

4.  A DD Form 1408 (Armed Forces Traffic Ticket) was issued to the applicant for speeding, 34 miles per hour (mph) in a 20 mph zone.

5.  A DA Form 4856 (General Counseling Form), dated 22 June 1993, shows the applicant was counseled for indebtedness and the writing of dishonored checks.

6.  A Security Police Desk Blotter dated 30 July 1993 shows the applicant was cited for drinking an alcoholic beverage and driving.  Field sobriety tests were conducted, which the applicant passed.  A DD Form 1408 was issued for driving a vehicle with an open container.

7.  On 9 December 1993, 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.  

8.  On 9 December 1993, 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.  

9.  On 4 January 1994, 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

10.  The applicant’s commander recommended separation in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct - pattern of misconduct, with the issuance of an other than honorable discharge. 

11.  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 an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 28 January 1994.

12.  The DD Form 214 he was issued confirms he was discharged on 28 January 1994 in accordance with chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge.  This form further confirms he completed a total of 3 years, 1 month, and 26 days of creditable active military service.

13.  Subsequent to his discharge from the Regular Army on 28 January 1994 he:

* enlisted in the Army National Guard on 1 April 1997 and served until his enlistment in the U.S. Army Reserves (USAR) on 14 February 2002  
* served in the USAR through his involuntary activation from 24 July 2005 through 11 June 2006 
* enlisted in the Regular Army on 12 June 2006   
* received an honorable discharge from the Regular Army on 11 June 2012
* the highest rank/grade he attained while serving on active duty was sergeant/E-5

14.  He applied to the Army Discharge Review Board for an upgrade of his discharge and on 31 March 2000, the board denied his request.

15.  The applicant provided his DD Forms 214 and NGB 22E which reflect receipt of the following decorations, medals, badges, campaign ribbons, and overseas service:

* Iraq Campaign Medal with five Campaign Stars
* Army Commendation Medal
* Army Achievement Medal (7th award)
* Meritorious Unit Commendation (2nd award)
* Army Good Conduct Medal
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Service Medal
* Korea Defense Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (4th Award)
* Armed Forces Reserve Medal with M Device
* Driver and Mechanic Badge- Mechanic
* Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp

* Service in Korea from 26 July 1991 through 25 July 1992
* Service in Iraq from 5 August 2005 through 24 May 2006
* Service In Iraq from 3 January 2007 through 31 January 2008
* Service in Iraq from 18 December 2009 through 31 December 2010

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  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.  

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.

2.  The applicant contends that his discharge should be upgraded because he was young and immature at the time of his initial service and he has served honorably in subsequent service.

3.  Records show the applicant was 22 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

4.  The applicant's subsequent periods of service have been honorable.  He deployed 3 times in support of Operation Iraqi Freedom and was promoted to the rank of sergeant/E-5.

5.  Nevertheless, his actions at the time clearly brought discredit upon himself and the Army.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

6.  Based on his record of indiscipline, which includes Article 15 punishment, 
2 traffic tickets, and counseling for writing bad checks, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the relief requested.







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)                                         AR20140005368





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ABCMR Record of Proceedings (cont)                                         AR20140005368



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