IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012761 


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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states that when he entered the military he was an immature young boy who did not have a lot of guidance and he made bad choices.  The incident that led up to his discharge was not all his fault nor was it handled correctly.  He should have fought for himself back then but he did not know that he could.  He has since matured, and changed his life and ways.  He is a family man with a wife and kids.  Having his discharge upgraded will allow him to pursue a career as a correctional officer.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, and his arrest record issued by the Highlands County Sheriff's Office.

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.  On 6 October 1987, the applicant enlisted in the Regular Army.  He was 18 years of age.

3.  On 6 April 1988, the applicant was promoted to private, pay grade E-2.

4.  On 24 July 1988 (should read 1989), he was notified by his commander that action was being taken to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct with a recommendation for a General Discharge Certificate.  This action was based on the following:

* nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 29 June 1988 for falling asleep on guard duty 
* NJP on 16 November 1988 for storing a military weapon in his privately owned vehicle (POV)
* summary court-martial, dated 21 December 1988, for breaking restriction
* NJP on 21 February 1989 for disobeying a lawful order
* NJP on 8 April 1989 and on 24 July 1989 for failure to repair 
* bar to reenlistment, 6 April 1989

5.  He elected not to submit a statement on his own behalf or to consult with counsel.

6.  On 27 July 1989, the approving authority approved the recommendation that the applicant be discharged and that he be issued a General Discharge Certificate.

7.  On 7 August 1989, the applicant was accordingly discharged.  He had completed a total of 1 year, 10 months, and 2 days of creditable active duty service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  He provides a Highland County Sheriff's Office memorandum, dated 9 July 2014, which indicates the applicant does not have an arrest record.  He also provided a statement in which he contends that while participating in an Army Training and Evaluation Program exercise at Fort Bragg, NC, his executive officer gave him permission to have his POV in the field for the purpose of picking up lunch from Burger King every day.  When it was time to depart the exercise he made a decision to transport his equipment and his weapon in his car and he received an Article 15 for doing so.  He blamed his executive officer because he did not assist him; therefore, he did not comply with his punishment and he received another Article 15 (NJP).  He contends that his commander was eager to get rid of him before the unit deployed to Korea.

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 included acts or patterns of misconduct.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	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.  Records show that the applicant was 19-20 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant's post-service accomplishments and his desire to pursue a career as a correctional officer are noted.  However, they do not mitigate his pattern of misconduct during his period of service.  His contention that his executive officer played a part in his misconduct cannot be substantiated.  Further, his record of misconduct also included a summary court-martial and five instances of NJP.

3.  The record shows that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140012761



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ABCMR Record of Proceedings (cont)                                         AR20140012761



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