IN THE CASE OF:	  

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140011702 


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 that his discharge be upgraded to an honorable discharge.  

2.  The applicant states:

* out of five years of service he was involved in one incident with his spouse that resulted in an Article 15
* he requested to be discharged and this is what they gave him

3.  The applicant provides no additional documents in support of this application.
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 18 September 1986. 

3.  His record reveals a disciplinary history that includes 19 DA Forms 4856 (General Counseling Form) documenting counseling sessions from 22 June 1989 to 27 August 1991, for being drunk on duty, indebtedness, dishonored checks, removal of corporal stripes, and assault.

4.  On 2 August 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for striking his spouse in the face with a closed fist on 25 June 1991 and unlawfully striking his spouse with a broom on 7 July 1991.

5.  On 16 September 1991:

	a.  he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct - serious misconduct. 

	b.  his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, due to his field grade Article 15 for assault, two previous counseling statements for assault, and numerous counseling statements for dishonored checks.  The commander also recommended a general, under honorable conditions discharge.

	c.  he acknowledged receipt of the proposed separation action against him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant elected his rights to legal counsel and to submit a statement in his own behalf; however, there is no such statement in the available records for review.

	d.  the intermediate commander recommended approval of his general, under  honorable conditions discharge.

6.  On 17 September 1991, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the issuance of a general, under honorable conditions discharge certificate.

7.  On 24 September 1991, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows the authority and reason for his discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct-commission of a serious offense with an under honorable conditions (general) discharge.  The DD Form 214 confirms he completed 5 years and 7 days of creditable active service.

8.  There is no indication the applicant 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, conviction by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

   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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a field grade Article 15 for offenses under the Uniform Code of Military Justice and was separated with a general, under honorable conditions discharge for serious misconduct for assault, indebtedness, and dishonored checks.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

2.  The evidence of record shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
Further, the applicant's discharge accurately reflects his overall record of service.


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)                                         AR20140011702





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ABCMR Record of Proceedings (cont)                                         AR20140011702



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