BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017759 


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 an upgrade of his under honorable (general) conditions discharge to a fully honorable discharge. 

2.  The applicant states this discharge was due to poor youthful decisions while off duty related to a personal situation he was incapable of handling appropriately.  Although his actions causing the discharge were serious, there was never a question of his abilities or dedication to the Army.  Had things been handled differently when his direct supervisor was notified of the mistakes he had made, he believes the outcome would have been very different.  His superiors had every confidence in his abilities both as a Soldier and his ability to overcome his mistakes.  They supported his remaining enlistment to continue serving our country as stated in attached letters of his commanding officers.  He has always regretted the manner in which his service ended; serving his country is always something he will be proud of.  It would mean a great deal to him if his discharge reflected his service and commitment by granting him an honorable discharge status.  He has one grown son who is active Army and two younger sons who are considering enlisting after they graduate high school.  Military honor and love of our country is very important to their family.

3.  The applicant provides:

* Approval of separation action
* Two character reference letters 


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's records show he enlisted in the Regular Army on 22 August 1990 and he was trained in and held military occupational specialty 11B (Infantryman). 

3.  He was assigned to Fort Ord, CA.  He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Army Achievement Medal, Air Assault Badge, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Expert Marksmanship Qualification Badge with Rifle Bar.  He also attained the rank/grade of specialist/E-4. 

4.  On 24 August 1992, he was apprehended by civil authorities for underage drinking and driving while intoxicated.  He was convicted by the San Jose Municipal Court, County of Santa Clara, California. 

5.  On 13 November 1992, he was apprehended by civil authorities in California for driving under the influence of alcohol.  He was underage at the time and his driving privileges had been suspended by the State.  He was confined by civil authorities in San Jose, California, from 13 November to 3 December 1992. 

6.  On 20 May 1993, the applicant's immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense – in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The immediate commander cited the applicant's apprehension by civil authorities on 14 November 1992 for driving under the influence and his history of disciplinary infractions.  He recommended an honorable discharge.

7.  On 20 May 1993, the applicant acknowledged receipt of the commander's intent to separate him.  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 waived consideration of his case by an administrative separation board and/or personal appearance before a board (if eligible for a board) contingent on receiving a characterization of service no less than honorable and he elected not to submit a statement in his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade; but, he understood that an act of consideration by either board did not imply his discharge would be upgraded  

8.  Following this acknowledgement, the applicant's immediate commander initiated separation action against him due to misconduct – commission of serious offense in accordance with Army Regulation 635-200, paragraph 14-12c. The commander indicated the applicant was not eligible for a separation board.

9.  On 27 July 1993, his immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an honorable characterization of service. 

10.  On 19 August 1993, the Commanding General (separation authority), 7th Infantry Division, indicated he had reviewed the applicant's misconduct, commission of a serious offense, two counts of driving under the influence, driving on a suspended license, and drinking under age.  He determined the applicant's actions warranted discharge and that normally a discharge of this nature warrants a less than honorable discharge.  He stated that he reluctantly concurs with the chain of command's recommendations that he is a good Soldier and approved the discharge action and ordered him discharged from the Army with a General Discharge Certificate.  The applicant was discharged accordingly on 1 October 1993.  

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, chapter 14, with his service characterized as under honorable conditions (general).  He completed 3 years, 1 month, and 10 days of creditable active military service. 

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

13.  He provides the approved separation memorandum together with two character statements that were submitted with his separation packet. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.

15.  Army Regulation 635-200, 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's records show he committed a serious offense (twice driving under the influence of alcohol, driving on a suspended license, and underage drinking).  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.  His misconduct and failure to respond positively to counseling by members of his chain of command diminished the quality of his service.

3.  Separation under paragraph 14-12c of Army Regulation 635-200 by reason of commission of a serious offense normally carries a discharge characterization of under other than honorable conditions.  However, the separation authority took the chain of command's recommendations into account and reluctantly considered his overall service and determined a general discharge is more appropriate.  

4.  Nevertheless, the applicant's service was not satisfactory and insufficiently meritorious to warrant an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20140017759





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ABCMR Record of Proceedings (cont)                                         AR20140017759



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