IN THE CASE OF:  	  

		BOARD DATE:  8 January 2015	  

		DOCKET NUMBER:  AR20140008784 


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 under honorable conditions.

2.  The applicant is asking for grace.  He states he was eligible to request an upgrade of his discharge a long time ago; however, he never looked into it until now.  He was young and had a lot of problems with home, depression, and dealing with emotional problems as the result of prior parental abuse, including sexual and physical abuse.  He tried to be a good Soldier and he trained hard; however, his first sergeant said he couldn't supply a babysitter to watch him during his off-duty time.  He did a lot of drinking and self-medicating because of his depression.  He hates that he screwed up his military career and he considers it the biggest regret of his life.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 2 February 1988, at the age of 17 years, 9 months, and 26 days in military occupational specialty 13B (Cannon Crewmember).

3.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 21 March 1989, which shows he received nonjudicial punishment (NJP), on 10 February 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.

4.  On 28 August 1989, the applicant was found guilty by a summary court-martial of breaking restriction on 25 June 1989.  He was sentenced to a forfeiture of pay and confinement for 30 days.  The sentence was approved on
11 September 1989.

5.  On 25 September 1989, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(b), for misconduct – pattern of misconduct.  Specifically, the immediate commander cited the applicant's misconduct based on commission of serious willful acts in violation of the UCMJ, which included receipt of a summary court-martial, two Article 15s, and a Bar to Reenlistment.

6.  On 25 September 1989, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  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 the procedures/rights available to him.  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 general under honorable conditions.  He also elected not to submit a statement in his own behalf.  He acknowledged that he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He could submit an application to the Army Discharge Review Board or the ABCMR for upgrade.  However, an act of consideration by either board did not imply that his discharge would be upgraded.
7.  On 25 September 1989, the applicant underwent a mental health evaluation which psychiatrically cleared him for any administrative actions deemed appropriate by the command.

8.  The applicant's immediate commander initiated separation action against him for misconduct in accordance with Army Regulation 635-200, paragraph 
14-12(b), and recommended the issuance of a general discharge under honorable conditions.

9.  On 14 November 1989, his intermediate commander recommended approval of the separation action for misconduct.

10.  On 16 November 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct – and directed his general discharge under honorable conditions.  Accordingly, the applicant was discharged on 3 January 1990.

11.  His DD Form 214 confirms he was discharged under honorable conditions on 3 January 1990 under the provisions of Army Regulation 635-200, chapter 14. This form further shows he completed a total of 1 year, 10 months, and 9 days of net active service this period  with time lost from 28 August to 20 September 1989.

12.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 set 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 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.

14.  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's request to upgrade his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  Records show the applicant was over 18 years of age at the time of his offenses.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.

3.  The evidence of record shows the applicant had a history of disciplinary problems including a conviction by summary court-martial, instances of NJP under Article 15 of the UCMJ, and a bar to reenlistment.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Therefore, he is not entitled to 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)                                         AR20140008784





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008784



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1