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ARMY | BCMR | CY2014 | 20140011223
Original file (20140011223.txt) Auto-classification: Denied


		IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140011223 


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:

* his discharge was inequitable because it was based on one incident in 28 months and 9 days of service with no other adverse action
* he was charged for driving under the influence (DUI) in 1988 while out-processing in Kaiserslautern, Germany
* he was chaptered out with a general discharge
* it was a one-time lapse in judgment after an otherwise promising career

3.  He provides:

a. DD Form 214 (Certificate of Release or Discharge from Active Duty).

b.  The following documents from the U.S. Small Business Administration:

* Personal Business Commitment Plan Year-End Evaluation
* Personal Business Commitment Plan (Employee/Team Leader)
* Office of Disaster Assistance - Performance Appraisal and Awards Review Form


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 12 August 1986 for a period of 3 years.  He held military occupational specialty 16H (Air Defense Artillery Operations and Intelligence Assistant).  He served in Germany from 
14 December 1986 to 19 December 1988.

3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions:

* on 14 July and 4 October 1988, for failing to obey a lawful order on 17 June and 21 September 1988
* on 16 November 1988, for operating a vehicle while drunk on 27 October 1988

4.  On various occasions between May 1988 and November 1988, he received adverse counseling statements for being missing from the battery area, exercising poor judgment while driving a vehicle, failure to repair, receiving two Article 15s, failing to pass the Army Physical Readiness Test, and missing morning formation.  

5.  On 21 November 1988, 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.  He was advised of his rights.  On the same date, he acknowledged receipt of notification of separation action.  He waived consultation with legal counsel and did not submit statements in his own behalf.

6.  The separation authority's approval of the separation action is not available.  

7.  On 21 December 1988, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense with a general discharge.  He completed 2 years, 4 months, and 10 days total active military service.  

8.  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.

9.  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 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 contention that his discharge was inequitable because it was based on one incident in more than 28 months of service with no other adverse action are acknowledged.  However, his service record shows he received three Article 15s and numerous adverse counseling's while on active duty.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  Although an under other than honorable conditions 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 warranted a general discharge.  

4.  The applicant's 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)                                         AR20140011223



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ABCMR Record of Proceedings (cont)                                         AR20140011223



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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