BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010209 


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 upgrade of his general under honorable conditions discharge.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident within 72 months of service.  He had honorably completed one term of service and was on his second term when he was discharged.

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 4 August 1992.  After completing initial training, he was awarded military occupational specialty (MOS) 91B (Medical Specialist).  He was later awarded MOS 91C (Practical Nurse).  He reenlisted on 10 April 1997.  

3.  During his active service he was awarded or authorized:

* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Noncommissioned Officer's (NCO) Professional Development Ribbon
* Army Service Ribbon
* Joint Meritorious Unit Award
* Air Assault Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  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 7 May 1998, for one specification of selling an M40 Protective Mask and one specification of assault for grabbing and pushing his spouse to the ground
* on 26 October 1998, for one specification for disobeying a lawful order from an NCO to make no contact with his spouse outside the presence of an NCO

5.  His records contain nine counseling statements which essentially address:

* two occasions of failing to pay a just debt
* three instances of failing to report to his appointed place of duty at the time prescribed (failure to repair)
* three counseling statements which address domestic violence

6.  On 21 December 1998, the applicant's unit commander notified him of her intent to initiate 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) and 14-12c (Commission of a serious offense).  In her separation request, the commander enumerated the applicant's past incidents of misconduct.  She indicated she would be recommending a discharge under other than honorable conditions.

7.  On 21 December 1998, the applicant met with counsel and was advised of the basis for the contemplated separation action.  He indicated to his commander he was submitting a request for conditional waiver of his administrative separation board.  He did not submit statements in his own behalf and requested 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.  

8.  On 21 December 1998, he submitted his request for conditional waiver wherein he voluntarily waived his right to an administrative separation board contingent upon receiving a general discharge under honorable conditions.

9.  On 22 December 1998, the applicant's commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14, section III, paragraph 14-12b and 14-12c. 

10.  On 14 January 1999, the separation authority approved the discharge action and directed the applicant receive a general under honorable conditions discharge.  On 26 January 1999, the applicant was discharged accordingly.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received a general discharge under honorable conditions.  It shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with a narrative reason of "misconduct."  It also shows he completed 6 years, 5 months, and 23 days of creditable active service, with no lost time.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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. 

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.  The applicant claims the characterization of his service was inequitable because it was based upon one isolated incident.  The evidence of record, however, confirms the applicant's separation was based upon a pattern of misconduct and 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.  

3.  The applicant notes his first term of service was honorable; however, based upon his behavior during his second enlistment his service for that period 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)                                         AR20140010209





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ABCMR Record of Proceedings (cont)                                         AR20140010209



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