IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140016167 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states:

	a.  He was an outstanding Soldier, professionally, mentally, and physically and he was on a career path as a Soldier.

	b.  He was highly motivated and he took his duties very seriously.  He served with honor and distinction and everything was going in the right direction until he was hit with a divorce suit while he was deployed.

	c.  His ex-wife took everything he had worked throughout his life to obtain, she cleared the bank accounts, and she took full advantage of the fact that he was deployed and unable to do anything to stop her.  

	d.  His wife took all of his pay and he was left with $100 out of a month's pay. He went off the deep end and he feels the Army is partially to blame as they did nothing to support him.

	e.  When he hit rock bottom, there was nothing left for him.  He lost everything and he again blames the Army for not giving him the time to at least try to save some of his belongings.

	f.  His morale began to suffer and he was no longer able to perform his duties. As a result, he was discharged with an under other than honorable conditions discharge.  

	g.  He is trying to obtain benefits from the Department of Veterans Affairs (VA) because his health has taken a turn for the worse.  The upgrade of his discharge will allow him access to everything the VA has to offer.  

	h.  The events ruined his life and he is at a point where he is starting over from the very beginning.  He needs help in moving forward so he can be employed in order to get back on his feet.

3.  The applicant provides a 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 4 April 1989.  He reenlisted on 18 December 1991 and on 22 February 1995.  

3.  The Defense Manpower Data Center (DMDC) compiled the Operations Desert Shield/Desert Storm database, which shows the applicant served in Southwest Asia from 1 April to 31 May 1993 and from 1 March to 31 May 1995.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he arrived in Bosnia on 30 January 1996.

5.  He accepted nonjudicial punishment (NJP) on 7 May 1996, for physically controlling a passenger vehicle while drunk and for physically controlling a passenger vehicle in a reckless manner by driving at a high rate of speed, on or about 18 January 1996.
6.  He was counseled on the following dates:

* 6 September 1997, for failing to be at his appointed place of duty
* 11 September 1997, for missing physical training formation
* 7 October 1997, for operating a vehicle while intoxicated

7.  He accepted NJP on 2 December 1997 for physically controlling a passenger vehicle while impaired by the consumption of alcohol.  

8.  He was found guilty by a summary court-martial on 1 April 1998 of wrongful use of marijuana.  

9.  His unit commander advised the applicant on 20 May 1998 that he was initiating action to discharge him under the provisions of Army Regulation       635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, based on a pattern of misconduct.  His unit commander indicated he was recommending the applicant receive an under other than honorable conditions characterization of service.  The reasons cited for the proposed separation action were the applicant's use of marijuana, his failing to go at the time prescribed to his appointed place, operating a vehicle while impaired on two separate occasions, and operating a vehicle in a reckless manner.  He was advised of his right to:

* consult with legal counsel 
* present his case before an administrative separation board
* submit statements in his own behalf
* waive his rights in writing

10.  He consulted with legal counsel and he was advised of the basis for the contemplated action to involuntarily separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He acknowledged he could be issued a discharge under other than honorable conditions and that he could be ineligible for many or all benefits administered by the VA, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

11.  On 29 May 1998, his battalion and brigade commanders recommended approval of the separation action, with his service characterized as under other than honorable conditions.  


12.  The separation authority approved the recommendation for the applicant's separation on 11 June 1998, under the provisions of Army Regulation 635-200, paragraph 14-12b, with service characterized as under other than honorable conditions.  The applicant was discharged accordingly on 1 July 1998.

13.  There is no evidence in his available records indicating that family problems were the proximate cause of his acts of misconduct or that he sought assistance through military support channels for his family problems.

14.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

15.  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.

	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.

	c.  Paragraph 3-7b states 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 contends his discharge under other than honorable conditions should be upgraded to honorable because he was having family problems and the Army did not provide him support; however, there is no evidence in his 
available records, and he provided none, indicating that family problems were the proximate cause of his acts of misconduct or that he sought assistance through military support channels for his family problems.

2.  He also implied his discharge should be upgraded in order to gain access to services provided to veterans by the VA; however, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for veterans' benefits.  

3.  The available evidence confirms his separation processing for a pattern of misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  His record of indiscipline includes NJP on two occasions, negative counseling statements, driving while impaired on two separate occasions, reckless operation of a motor vehicle, and a summary court-martial conviction for marijuana use.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This record of misconduct also rendered his service unsatisfactory.  Therefore, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  His two previous terms of honorable service were noted; however, he has failed to provide evidence demonstrating that the command's actions and/or the characterization of his service were in error or unjust.

6.  In view of the foregoing, there is no 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)                                         AR20140016167



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016167



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1