IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140016473 


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 upgrade of his general, under honorable conditions discharge.

2.  The applicant states he was unaware that he could request upgrade of his discharge.  It has been more than 22 years since he was discharged.  He adds it is possible that employers cannot distinguish between an honorable and general, under honorable conditions discharge.

3.  The applicant provides no documentary evidence in support of his application.

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 23 March 1990 for a period of 
5 years.  He was awarded military occupational specialty 91D (Operating Room Specialist).  He served overseas in Southwest Asia from 9 December 1990 through 27 March 1991.  He attained the rank of specialist/pay grade E-4 on 
1 September 1991.

3.  The applicant accepted nonjudicial punishment (NJP) for being absent from his unit from 29 November 1991 to 16 December 1991.  His punishment included reduction to private first class/pay grade E-3 (suspended, to be automatically remitted if not vacated before 5 May 1992) and 14 days of extra duty.

4.  On 22 May 1992, the applicant's commander notified him that he was recommending him for separation under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct.

   a.  The reasons for her proposed action were that the applicant:

* was arrested for failure to appear in civilian court on 12 September 1991
* wrote worthless checks totaling $350.00 within a six month period
* was arrested for failure to appear in civilian court on 5 January 1992
* received NJP for being absent without leave (AWOL) for 2 weeks
* was counselled for failing to report for duty (on 18 December 1991,
21 and 28 February 1992, and 9 March 1992)

   b.  The applicant was advised of his rights and the separation procedures involved.  The commander also informed him that she was recommending a general, under honorable conditions characterization of service.

	c.  The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel.

5.  Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him.

   a.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him.

   b.  The applicant also acknowledged he understood that if he received a discharge/character of service that is less than honorable conditions he may make application to the Army Discharge Review Board (ADRB) or ABCMR for upgrading his discharge.  However, an act of consideration by either board did not imply that his discharge would be upgraded.

	c.  He elected to submit statements in his own behalf.
	
   d.  The applicant and his counsel placed their signatures on the document on 25 May 1992.

   e.  A review of the applicant's statements shows he assured the commander that his financial problems had been resolved, and that he and his wife were attending classes to help deal with their marital and family issues.  He asserted that his duty performance had not been affected by his personal problems and that he had not had any financial or family problems since February 1992.

6.  His immediate and intermediate commanders recommended approval of the applicant's separation with a general, under honorable conditions discharge.

7.  The separation authority approved the recommendation for discharge of the applicant and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, based on a pattern of misconduct and that he be issued a General Discharge Certificate.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 22 June 1992 under the provisions of Army Regulation 635-200, paragraph 14-12b, with service characterized as under honorable conditions (general).  He had completed 2 years and 3 months of net active service during this period.

9.  A review of his military personnel records failed to reveal any evidence that he applied to the ADRB for review of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, 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, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.
	b.  Chapter 3, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to fully honorable. 

2.  Records show the applicant enlisted in the Regular Army on 23 March 1990 and he was discharged under honorable conditions on 22 June 1992 after completing 2 years and 3 months of active duty.

3.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, chapter 14, based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of discharge directed were appropriate and equitable.

4.  The evidence of record shows the applicant was arrested twice for failure to appear in civilian court, received NJP for being AWOL from 29 November 1991 through 15 December 1991, wrote worthless checks totaling $350.00, and was repeatedly counselled for failing to report for duty.  In addition, he completed only 2 years and 3 months of his 5-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

5.  Therefore, there is an insufficient basis for granting the 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)                                         AR20140016473



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ABCMR Record of Proceedings (cont)                                         AR20140016473



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