IN THE CASE OF:  

		BOARD DATE:  2 April 2015  

		DOCKET NUMBER:  AR20140014444


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 his general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, the following: 

     a.  His discharge was caused by misguided information from a lieutenant in his company, in whom he confided the fact that he was separating from his wife because she was sleeping with another person and that person was providing her with cocaine.  

     b.  The lieutenant informed him that he was responsible for his wife's actions, which was a shock to him.  He had never been in trouble with the law, excluding three speeding violations.  The lieutenant informed him that he needed to get out of the service and that if his wife's actions came to light he could be dishonorably discharged for narcotics.  

     c.  When he separated from his wife, he was ordered to provide her with support that was equivalent to all of his basic allowance for quarters and separate rations.  This caused him extreme financial hardship, especially since he was unable to move onto base.  He tried to file for financial hardship and was informed he could not. 

     d.  Faced with a bad situation, he asked the lieutenant what he could do to salvage what was left of his military career.  It was suggested to him to get chaptered out, rather than get dishonorably discharged because of his wife's narcotics use.  

	e.  The lieutenant said he should be late to formations, get flagged from reenlistment, then repeat the offense in order to be barred from reenlistment, and then he would get chaptered out on a general discharge under honorable conditions.   He was unaware that conduct would be part of the discharge and that he regrets not seeking counsel from the Judge Advocate General (JAG) for his situation.   

     f.  His brothers and uncles have served or are serving and, even though he is a civilian now, wishes to still be a part of the military.  He recently received his college degree and would like to serve veterans by working at a Department of Veterans Affairs (VA) hospital.  This is his reason for wanting to upgrade his discharge.  

3.  The applicant provides copies of the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 January 1993
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 3 January 1994
* DD Form 214, for the period ending 20 November 1995
* Army Achievement Medal Certificate, dated 10 December 1992
* three letters of congratulations from the University of Maine at Presque Isle
* a copy of his Bachelor of Science degree from the University of Maine at Presque Isle
* four third-party letters of support/recommendation  

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 27 August 1990.  He completed training and was awarded military occupational specialty (MOS) 16P (Chaparral Crewmember).  On 6 January 1993, he was honorable released from active duty and transferred to the Army National Guard (ARNG).  

3.  On 4 January 1994, he enlisted in the Regular Army and was trained and awarded MOS 43E (Parachute Rigger).   

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article     15 of the Uniform Code of Military Justice (UCMJ) on 28 June 1994, for being absent without leave (AWOL) from on or about 15 June 1994 to on or about      20 June 1994.  

5.  His record shows he was formally counseled by members of his chain of command on at least 9 occasions between 4 January 1995 and 13 July 1995, for either various infractions including, but not limited to, being late or absent from early morning formations and being AWOL.  He was counseled that continued unsatisfactory performance and conduct could lead to him being separated for elimination from the service. 

6.  On 1 June 1995, he was barred from reenlistment.  He elected not to appeal the bar and the imposing commander directed the bar be filed in his military records. 

7.  On 1 August 1995, he underwent a report of mental status evaluation.  The evaluation stated there was no evidence of any psychiatric disorder or condition that warranted disposition through medical channels.  Additionally, it stated that the applicant was psychiatrically cleared for any administrative actions deemed appropriate by the chain of command.  
	
8.  On 15 September 1995, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct.  On the same date, he acknowledged receipt of his commander's notification memorandum.  

9.  On 18 September 1995, he consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge.  He acknowledged he understood that if he received a discharge/character of service which is less than honorable, he may make application to the Army Discharge Review Board (ADRB) or this Board for upgrading.  However, he realized that an act of consideration by either board does not imply that his discharge will be upgraded.

10.  On 20 September 1995, his immediate commander recommended that further counseling and rehabilitation efforts be waived and initiated separation action against him in accordance with Army Regulation 635-200, paragraph 
14-12b, for misconduct with a general under honorable conditions discharge.   

11.  On 22 September 1995, the separation authority waived further rehabilitative efforts and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct and directed the issuance of a General Discharge Certificate.

12.  On 20 November 1995, the applicant was discharge accordingly.  He completed 1 year, 10 months, and 12 days of net active service this period.      

13.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  The applicant's record does not contain documentation that supports his contention that:

	a.  His lieutenant advised him that he was responsible for his wife's actions and he could be dishonorably discharged if his wife's narcotics use came to light. 

	b.  His lieutenant suggested ways for him to get chaptered out of the service by missing formation and getting barred from reenlistment.   

15.  The applicant provided a certificate showing that he was awarded the Army Achievement Medal for meritorious service from 6 January 1991 to 7 January 1993, dated 10 December 1992.  He also provided three congratulatory letters from the University of Maine at Presque Isle for achieving the Dean's List with dates of 20 January 2012, 8 June 2012, and 25 January 2013 along with a copy of his Bachelor of Science degree from said university.  Additionally, he provided four letters of recommendation for employment attesting to his responsibility, work ethic and positive attitude.   

16.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.  A discharge under other than honorable conditions 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 request that his general under honorable conditions discharge be upgraded to an honorable discharge was carefully considered.

2.  The applicant contends he confided in his lieutenant about a personal situation and was given advice on how to get chaptered out of the service.  He also contends that he regrets not seeking counsel from JAG for his situation.  There is no available evidence nor has he submitted any evidence that shows his lieutenant provided such advice.  There is a presumption of regularity in the conduct of government affairs.  He was afforded and consulted with counsel when his command initiated separation proceedings against him.  

3.  His record shows he was AWOL for 5 days and had other infractions and was afforded multiple opportunities, through counseling, to rehabilitate himself, which he failed to do.  He was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.      

4.  Although an under other than honorable conditions discharge is normally considered appropriate for the authority and reason for his discharge, it appears the separation authority determined his overall record of service warranted a general discharge.

5.  The applicant's post-service achievements and letters of recommendation are commendable, but they do not mitigate his conduct and actions or the seriousness of the offenses he committed during his service.

6.  The Board acknowledges and applauds his desire to continue to serve by helping veterans at a VA hospital; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.   

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130001380



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ABCMR Record of Proceedings (cont)                                         AR20140014444



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