IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140016362 


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 discharge under other than honorable conditions be upgraded to general or honorable.

2.  He states he needs his discharge upgraded to further his career and get a better position for future growth.  He adds he has not been in any trouble with the law and has become a pillar in many ways in his community through community outreach programs, mentoring, and other activities.  At the time of the incident, he was under duress from being stationed in Korea after being newly married and separated from his wife and infant son.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three certificates.

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 24 November 1992.  

3.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he completed overseas tours of service in Germany and Korea.

4.  His record shows on 14 January 1997, he received a General Officer Memorandum of Reprimand (GOMOR).  The GOMOR stated that on 
18 December 1996, he was apprehended by the El Paso Police for drunk driving. A chemical breath test revealed his alcohol content was .190, in violation of Army regulation and Texas law.

5.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 
14 July 1998 for disobeying a lawful order on 27 June 1998.

6.  On 7 December 1998, he was convicted by a general court-martial for the following offenses committed on 12 July 1998:  violating a lawful order, willful dereliction of duty, and making a false official statement.  He was sentenced to reduction to the grade of E-1 and confinement for 6 months.

7.  On 21 April 1999, the company commander notified the applicant that she was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, commission of a serious offense.  Specifically, she cited the applicant's violation of a lawful order, willful dereliction of duties, and making a false official statement on 12 July 1998, as the basis for the discharge action.  She recommended the applicant be given a general discharge.

8.  On 21 April 1999, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he elected not to submit a statement in his own behalf.  He acknowledged he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood if he received a character of service which was less than honorable he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge.  However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

9.  On 22 April 1999, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.

10.  On 23 April 1999, he was discharged under the provisions of Army Regulation 635-200, chapter 14 by reason of misconduct.  He was credited with completing 6 years, 1 month, and 1 day of total active service.  His 
DD Form 214 shows in item 24 (Character of Service) "Under Other Than Honorable Conditions."

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

12.  He provides three certificates:

* On 24 September 2010, he successfully completed the Advanced Management Development Training Program
* On 21 June 2012, he was awarded a Certificate of Appreciation in recognition of his outstanding partnership and support of youth
* On 21 June 2013, he received honorable mention for his participation in the Concerned Black Men National Mentoring Program

13.  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, commission of a serious offense, and abuse of illegal drugs.  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 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.

	c.  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.  His record of service included a GOMOR, an NJP, and a conviction by a general court-martial.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for misconduct.  It appears his overall duty performance and longevity of service was considered when the separation authority approved a general discharge.  However, it appears an administrative error was made on his DD Form 214, in that his character of service is shown as under other than honorable conditions.  Therefore, he is entitled to be issued a new DD Form 214 showing a general under honorable conditions character of service.  

2.  The evidence shows he was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 

3.  The certificates he provided verify his participation in the mentoring program and his quest for self improvement; however, his good post-service conduct alone is not a basis for upgrading a discharge.  

4.  Further, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant potentially eligible for better career opportunities.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, his misconduct does not entitle him to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing a new DD Form 214 showing his character of service as "under honorable conditions, general."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable.




      _______ _   _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)                                         AR20140016362





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ABCMR Record of Proceedings (cont)                                         AR20140016362



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