IN THE CASE OF:    

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140006438 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states he is currently attending college to further his education and cannot use his benefits.  He believes an upgrade at this time is warranted.  He believes that his discharge does not reflect that he was a model Soldier prior to his misconduct and that he had never been in trouble.  Since his discharge from the military he has had no infractions and he has made great strides to improve himself.  He believes that based on his record since his discharge, an upgrade is justified. 

3.  The applicant provides no additional documentary evidence in support of this 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.  After having had prior service, on 2 April 1993 the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist).  The highest rank he held was specialist/pay grade E-4.

3.  On 3 April 1996, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for physically controlling a passenger car while drunk.

4.  A Report of Mental Status Evaluation, dated 15 May 1996, shows the examiner found no evidence of a mental disease or defect of psychiatric significance or of sufficient severity to warrant disposition through military medical channels and that he was mentally responsible.  He was cleared for any administrative actions deemed appropriate by his command.

5.  On 6 June 1996, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 
14-12c, for physically controlling a passenger car while drunk.  He informed him of his rights.  The applicant acknowledged receipt of the proposed action initiated against him.

6.  On 6 June 1996, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.  After consulting with counsel, he acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He waived his rights.  He elected not to submit a statement in his own behalf. 

7.  On 6 June 1996, his commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14.

8.  An intermediate commander recommended he be given a GD.  On 12 June 1996, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct and directed he receive a GD Certificate.

9.  On 16 June 1996, the applicant was discharged with a GD after completing 3 years, 2 months, and 15 days of net active service in addition to his prior inactive service.

10.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 GD if such is merited by the Soldier’s overall record. 

	b.  Paragraph 3-7a provides that an HD 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 available evidence does not support the applicant's request for an upgrade of his GD to an HD.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for misconduct.  Therefore, it appears his overall duty performance was considered when he was given a GD.  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.  The record supports the reason and authority for discharge shown on his DD Form 214. 

2.  His separation was due to his controlling a passenger car while drunk.  This misconduct is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.
3.  While the applicant's good post-service conduct and desire to improve himself are commendable, neither of these factors, either individually or in sum, is so meritorious as to warrant the relief requested.

4.  The ABCMR does not grant requests for changes to discharges solely for the purpose of making an applicant eligible for education or other benefits.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant an HD.

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)                                         AR20140006438



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ABCMR Record of Proceedings (cont)                                         AR20140006438



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