IN THE CASE OF:    

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20140014953 


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 discharge be upgraded to a fully honorable discharge.

2.  The applicant states that he was never able to explain what happened and was only required to agree to what authorities wanted to believe.  He was dating a young lady and was being stalked by his ex-girl friend who threatened to hurt them.  So, in desperation, he took his girl friend’s gun without her knowledge to protect them both.  However, his girl friend reported the gun as stolen.  If he could do it over he would have reported it to police officials and let them handle it.  He is married with four children and is attending college to better his life and desires to have his discharge upgraded for economic and employment reasons.

3.  The applicant provides copies of his marriage license, court documents, student schedule, and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 2 November 1994 for a period of 3 years and training as a combat engineer.  He completed his one-station unit training at Fort Leonard Wood, Missouri and was assigned to Fort Leonardwood for his first and only assignment.

3.  On 6 December 1995, nonjudicial punishment (NJP) was imposed against him for being absent without authority (AWOL) from 14 November to 
15 November 1995 and for disobeying a lawful order from a superior noncommissioned officer.

4.  On 7 May 1997, he reenlisted for a period of 4 years and a selective reenlistment bonus (SRB).  He was married with one, two-year old child at the time of his reenlistment.

5.  On 17 September 1997, NJP was imposed against him for the wrongful possession of an unregistered firearm, wrongfully displaying an unregistered firearm in the presence of children, attempting to commit assault on another male by brandishing a firearm at him, and wrongfully communicating a threat to shoot another male.  The applicant did not appeal his punishment.

6.  On 25 September 1997, the applicant’s commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct.  He cited as the basis for his recommendation that the applicant was apprehended on 22 June 1997 for attempted aggravated assault, communicating a threat, larceny of private property, failure to obey a regulation (unregistered weapon), and unlawful display of a firearm. 

7.  On 26 September 1997, after consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.

8.  On 21 October 1997, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 15 October 1997 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had served 2 years, 11 months, and 14 days of active service.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  A review of his official records shows that he was counseled on multiple occasions for writing bad checks, failure to follow instructions, dereliction of duty, disobeying a lawful order, and failure to maintain his personal appearance.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

13.  Paragraph 3-7a of Army Regulation 635-200 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.  

DISCUSSION AND CONCLUSIONS:

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

2.  Accordingly, the characterization and the narrative reason for discharge were appropriate for the circumstances of his case.

3.  The applicant's contentions and supporting documents have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating when compared to the serious nature of his offenses and his otherwise undistinguished record of service.  

4.  The applicant's overall service simply did not rise to the level of a fully honorable discharge.   Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20140014953





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ABCMR Record of Proceedings (cont)                                         AR20140014953



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