BOARD DATE:	    6 January 2015

		DOCKET NUMBER:  AR20140008934 


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 other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect:

* he was "young and dumb" while on active duty, not thinking of his future
* now he is older with a fiancée and young son
* he is going to school for automotive technology and recently discovered he is only getting 60 percent of his benefits; he owes money for school
* he regrets his actions and faced the consequences; now he asks for forgiveness and an upgrade of his service to show he served honorably
* since his discharge he was deployed to Afghanistan as part of the U.S. Army Reserve
* he made back his rank to specialist/E-4 and received numerous awards to include the Good Conduct Medal
* he is trying to be the man he should have been and believes he has earned the right to receive 100 percent of his benefits

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 16 June 2005 at age 17.  After completing initial training, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  He served in Iraq from 6 October 2006 to 11 December 2007.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with 1 bronze service star, Army Service Ribbon, and the Overseas Service Ribbon.

3.  His records show he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

* on 12 June 2008, for 3 specifications of failing to go to his appointed place of duty at the time prescribed
* on 12 December 2008, for one specification for being absent without authority (AWOL) for the period 14 October to 21 November 2008

4.  On 4 May 2009, the applicant's unit commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14, section III (Acts or Patterns of Misconduct), paragraph 14-12b (A pattern of misconduct).  In his separation request, the commander enumerated the applicant's past incidents of misconduct.  

5.  On 4 May 2009, the applicant met with counsel and was advised of the basis for the contemplated separation action.  He did not submit statements in his own behalf and waived further representation by counsel.  He stated he understood he could encounter considerable prejudice should he receive either a general discharge under honorable conditions or an under other than honorable conditions discharge.  

6.  On 6 May 2009, the separation authority approved the discharge action and directed the applicant receive a general under honorable conditions discharge.  On 1 June 2009, the applicant was discharged accordingly.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) appears to show he received a general discharge under honorable conditions.  It shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "pattern of misconduct."  It also shows he completed 3 years, 10 months, and 8 days of creditable active service, with 39 days of lost time.

8.  On 26 October 2010, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.

9.  The available record does contain a DD Form 214 showing honorable active service for the period 20 August 2010 to 2 October 2011 as a member of the U.S. Army Reserve.  It also shows he served in Afghanistan from 14 October 2010 to 17 August 2011.  He was awarded or authorized the:

* Army Commendation Medal
* Army Good Conduct Medal
* Afghanistan Campaign Medal with 1 bronze service star
* North Atlantic Treaty Organization Medal
* Afghanistan Service Medal
* Armed Forces Reserve Medal with "M" Device
* Driver and Mechanic Badge with Mechanic Clasp

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, convictions by civil authorities, desertion or absence without leave.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The separation authority may issue an honorable discharge or general discharge if warranted by the overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions of the regulation.

	b.  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. 
	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 that his discharge be upgraded was carefully considered, but there was insufficient evidence to support his request.

2.  In his request, the applicant indicated he had an under other than honorable conditions discharge.  His DD Form 214 shows the separation authority approved a general under honorable conditions discharge.  Thus, the requested upgrade would instead be for an honorable discharge.

3.  The evidence of record, however, confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation are presumed to have been met and the rights of the applicant were fully protected throughout the separation process.  Additionally, it appears the separation authority took the applicant's circumstances into account as he opted not to give the applicant the harsher characterization of an under other than honorable conditions discharge.

4.  Records show the applicant was 17 years of age at the time of his enlistment and age 24 at the time his commander initiated separation action.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  Although it is evident the applicant has made positive changes, as demonstrated by his recent service in Afghanistan, the period for which he requests an upgrade of his discharge was based on the applicant’s record of indiscipline for that period of service.  For that period, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.  Accordingly, there is no basis upon which to grant the applicant 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)                                         AR20140008934



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ABCMR Record of Proceedings (cont)                                         AR20140008934



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