IN THE CASE OF:	

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012001


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, received in 1995, to reflect his current discharge status.  

2.  The applicant states, in effect, that he has been trying to upgrade his discharge since he reenlisted in 2004 and it is affecting his employment opportunities.  He reenlisted in the Pennsylvania Army National Guard (PAARNG) and has served honorably, including a tour in Iraq.  He has numerous accolades, has attained a degree, and that should be taken into account.  He is a different and better person now.  He was a young and stupid kid at the time; he will be retiring from the military and wishes to put that bad time behind him.  

3.  The applicant provides the following documents:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 June 1995
* his DD Form 214, for the period ending 12 October 2009
* a certificate from the 56th Stryker Brigade Combat Team (SBCT)
* a Combat Medical Badge Certificate from the 56th SBCT
* his Honorable Discharge Certificate from the PAARNG
* a copy of his college transcript

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 25 July 1991 at age 18.  He completed training and was awarded military occupational specialty 14S (Avenger Crewmember).  The highest rank/grade he attained while serving on active duty, during this enlistment period, was private/E-2.    

3.  His record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his record does contain:

     a.  a DA Form 4187-E (Duty Status Change), from Battery D, 4th Battalion, 5th Air Defense Artillery Regiment, Fort Hood, Texas, dated 22 December 1993 that shows his duty status was changed from present for duty to absent without leave (AWOL) effective 21 December 1993, and a DA From 4187-E dated         24 January 1994 that shows he was dropped from the rolls on 19 January 1994. 

     b.  a DD Form 458 (Charge Sheet) dated 26 January 1994 that shows court-martial charges were preferred against him for one charge of violation of the Uniform Code of Military Justice (UCMJ), Article 86, in that he did, on or about   21 December 1993, without authority, absent himself from his unit, and did so remain absent.

     c.  a DD Form 616 (Report of Return of Absentee) dated 8 April 1995 that shows he was apprehended by civil authorities and returned to military control  on the same date and transferred to the Personnel Control Facility (PCF), Fort Knox, Kentucky.    

4.  His record does include a properly-constituted DD Form 214 that contains the authority and reason for the applicant's active duty discharge on 13 June 1995.  This form shows in:

* Item 12c (Net Active Service this Period), "2 years, 7 months, and 2 days"
* Item 24 (Character of Service), "Under Honorable Conditions (General)"
* Item 25 (Separation Authority), "AR (Army Regulation) 635-200, Para     14-18B" [sic]
* Item 26 (Separation Code), "JKA"
* Item 27 (Reentry Code), "3"
* Item 28 (Narrative Reason for Separation), "Misconduct" 

5.  His record shows he enlisted in the PAARNG on 1 November 2002 and was honorably discharged on 31 October 2003.  He reenlisted in the PAARNG on      8 January 2004 and has continued his service through the date of his application to this Board.

6.  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.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 absences 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	a.  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.  

	b.  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 for an upgrade of his 1995 under other than honorable conditions discharge, to reflect his current discharge status (presumably honorable), was carefully considered.  
2.  Although his record is void of the specific facts and circumstances surrounding his discharge processing, it does contain sufficient Army documents that appear to show the reasonable cause for his discharge (AWOL).  His record of service during the period in question did not meet the standards of acceptable conduct and performance of duty for Army personnel.   

3.  His records contain a DD Form 214 that identifies the reason for his discharge and the characterization of his service.  His DD Form 214 shows he was given a general discharge, not the under other than honorable conditions discharge he assumes he received as cited in his application.  

4.  He contends his youth played a role in his misconduct; however, he was over    20 years of age at the time of his offenses and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  This Board operates under the standard of a presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

6.  His honorable service in the PAARNG, his service in Iraq, obtaining a degree, and his desire to put this period behind him are acknowledged; however, these events and accolades do not form a basis to warrant upgrading the character of his service for the period in question.  

7.  In view of the above, there is no basis for granting 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)                                         AR20130007539



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ABCMR Record of Proceedings (cont)                                         AR20140012001



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