IN THE CASE OF:  	  

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140005891 


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 honorably discharged from the Navy in 1994.  However, at the time he was discharged from the Army the circumstances of his personal issues were a lot different.  

3.  The applicant provides 

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 23 September 1994
* DD Form 214 for the period ending on 23 April 1998
* five character letters

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.  After having previous honorable service in the U.S. Navy, the applicant enlisted in the Regular Army on 16 April 1997 and held military occupational specialty 31U (Signal Support System Specialist).

3.  His record contains a series of DA Forms 4187 (Personnel Actions) showing he was absent without leave (AWOL) from 3 January 1998 to 9 January 1998 and again from 9 January 1998 to 23 February 1998.  

4.  On 3 March 1998, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 3 January 1998 to 9 January 1998 and again from 9 January 1998 to 23 February 1998.

5.  His record contains a Standard Form (SF) 93 (Report of Medical History), an SF 88 (Report of Medical Examination) dated 5 March 1998, and a Report of Mental Status Evaluation dated 19 March 1998 showing he was physically and psychiatrically cleared to participate in separation proceedings.

6.  On 16 March 1998, he was notified by his immediate commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b/c, a pattern of misconduct/misconduct, commission of a serious offense because he went AWOL on two separate occasions.  He acknowledged receipt of notification on that same day.

7.  On 16 March 1998, he acknowledged he had been advised by his counsel of the basis for the contemplated separation action under Army Regulation
635-200, paragraph 14-12b/c, and its effects, of the rights available to him, and of the effect of any action taken by him to waive his rights.  He chose to waive consideration of his case before an administrative board, waive his right to an appearance before an administrative separation board, waive his right to counsel or representation, and he indicated his did not intend to or submit a statement in his own behalf.  

8.  On 17 April 1998, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b and c, and directed the issuance of a general discharge.  

9.  On 23 April 1998, he was discharged accordingly.  His DD Form 214 shows he was discharged under honorable conditions (general) by reason of misconduct, in accordance with Army Regulation 635-200, paragraph 14-12c(1). His DD Form 214 shows he completed 11 months and 17 days of active service with 23 days of lost time.

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

11.  He provided five character letters which all attest to his good character and work ethic.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  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.  

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 applicant contends his discharge should be upgraded because, in effect, his situation was different at the time of his discharge and his character has improved.  However, this does not change the fact that he went AWOL on two separate occasions.

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)                                         AR20140005891





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ABCMR Record of Proceedings (cont)                                         AR20140005891



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