IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007497 


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 under honorable conditions discharge to an honorable discharge and amendment of his narrative reason for separation.

2.  The applicant states:

* he was charged in a civilian court for a misdemeanor offense and paid a fine
* he served honorably for nearly 7 years and wants his service record to reflect this

3.  The applicant provides no additional evidence.

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 15 November 1983 and was released from active duty to the U.S. Army Reserve on 14 November 1986.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period reflects his net active service as 3 years and his character of service as honorable.

3.  He enlisted in the Regular Army a second time on 9 June 1987 and was discharged on 5 June 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  His DD Form 214 for this period reflects his net active service as 3 years, 11 months, and 27 days and his character of service as under honorable conditions (general).  The narrative reason for his separation is listed as "misconduct – commission of a serious offense."

4.  The specific facts and circumstances surrounding the events which led to his general discharge under honorable conditions are not available for review.  

5.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and was granted partial relief on 6 March 1995.  

6.  The ADRB concluded that his character of service was both proper and equitable and voted to deny relief regarding his requested upgrade.

7.  With regard to the narrative reason for discharge, the board determined the regulations in effect at the time of their review listed the narrative reason for discharge as "misconduct" as opposed to "misconduct – commission of a serious offense" and voted to change the narrative reason on his DD Form 214.  A DD Form 215 (Correction to DD Form 214) reflecting this change was issued on 21 August 1995.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14, in effect at the time, 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 3-7a 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.

	c.  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 upgrade of his general under honorable conditions discharge and a change to his narrative reason for separation was carefully considered.

2.  The applicant contends he was charged in a civilian court with a misdemeanor for which he paid a fine.  Receipt of charges and the subsequent payment of fines in a civilian court do not preclude the Army authority from taking appropriate administrative action against the guilty party for the same incident.

3.  The applicant's narrative reason for separation was later amended to read "misconduct" via a DD Form 215 issued on 21 August 1995.

4.  Although a discharge under other than honorable conditions was normally appropriate based on the authority and reason for his discharge, it appears his chain of command and the separation authority considered his overall record of service and directed the issuance of a general discharge.

5.  There is no evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

6.  In view of the foregoing there is no basis for granting the request 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 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)                                         AR20140007497



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ABCMR Record of Proceedings (cont)                                         AR20140007497



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