IN THE CASE OF:
BOARD DATE: 9 December 2014
DOCKET NUMBER: AR20140006859
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 to an honorable discharge.
2. He states he was told that his discharge would be automatically changed to honorable at a later date. He has never received this change.
3. He provides no additional documents.
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 7 January 1988.
3. On 13 March 1989, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 31 December 1988 to 30 January 1989.
4. He was barred from reenlistment on 14 February 1989.
5. On an unknown date, the applicant's unit commander notified the applicant of his intent to recommend discharge under the provisions of Army Regulation
635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c, for misconduct commission of a serious offense. The applicant was advised of his rights.
6. On 20 March 1989, he acknowledged notification of the separation action. He consulted with legal counsel and was advised of the basis for the contemplated action to separate him for commission of a serious offense under Army Regulation 635-200, paragraph 14-12c and its effects. He did not submit statements in his own behalf.
7. On an unknown date, the separation authority approved the separation action and directed the issuance of a general discharge.
8. On 26 April 1989, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct commission of a serious offense. The DD Form 214 he was issued shows he had lost time from 31 December 1988 through 30 January 1989 and from 30 January to 7 February 1989. He completed 1 year, 3 months, and 20 days of active military service and he had
38 days of lost time.
9. His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
10. 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, 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. An under other than honorable conditions (UOTHC) discharge 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.
b. Paragraph 3-7a states 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's service record shows he was AWOL from 31 December 1988 to 30 January 1989 and from 30 January 1989 to 7 February 1989. He was also barred from reenlistment.
2. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
3. Although a UOTHC discharge is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it appears the separation authority determined the applicant's overall service met the standards of acceptable conduct and performance of duty to warrant a general discharge.
4. His service record does not indicate the actions taken in his case were in error or unjust. Therefore, there is no basis for granting his request for an upgrade of his general discharge to an honorable discharge.
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) AR20140006859
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140006859
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