IN THE CASE OF:  	  

		BOARD DATE:  30 June 2015	  

		DOCKET NUMBER:  AR20140018605 


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 general, under honorable conditions discharge.

2.  The applicant states that he followed proper procedures; however, he was not given a fair evaluation of his service and his discharge was unjust.  He now realizes that the character of his discharge has had an adverse effect on his life.

3.  The applicant provides a copy of 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 26 July 1989 for a period of 
4 years.  He was awarded military occupational specialty 13B (Cannon Crewmember).  He served overseas in the Republic of Korea from 20 November 1989 through 19 November 1990.  He attained the rank of specialist/E-4 on
1 April 1991.

3.  The applicant was formally counseledas follows –

* on 8 April 1991 for being absent from formation
* on 3 October 1991 for failing to prepare for inspection
* on 14 January 1992 for failing to report at the specified time

4.  On 16 May 1992, the applicant was charged by military police with –

* assault (domestic violence)
* destruction of property (domestic violence)
* taking a motor vehicle without the owner's permission

5.  On 8 June 1992, the applicant's command sergeant major issued a letter of concern to the applicant concerning his misconduct.  Subsequently, his commander placed him on restriction.  On 17 June 1992, the commander documented that the aforementioned charges were dropped.

6.  On 13 July 1992, the applicant was again charged by military police with –

* criminal assault (domestic violence)
* obstructing a public servant

7.  On 23 November 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.  He noted that despite formal counseling, the applicant had a pattern of misconduct that clearly established further attempts to develop as a satisfactory Soldier were unlikely to succeed.

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

   b.  He was advised that he was entitled to a hearing before an administrative separation board if he had six or more years of active and reserve service at the time of separation, or if he was being considered for an other than honorable 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.

8.  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.  He requested consideration of his case by an administrative separation board and personal appearance before the board.

   c.  The applicant also acknowledged he understood that if he received a discharge/character of service that is less than honorable conditions he may apply 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.

	d.  He elected to submit statements in his own behalf.
	
   e.  The applicant and his counsel placed their signatures on the document on 23 November 1992.

   f.  A review of the applicant's statements shows he asked the commander to allow him to continue to serve on active duty until his expiration term of service based on his past duty performance.  He acknowledged that he understood he made mistakes, noted that he was punished for them, and expressed his desire to put matters behind him.  He expressed his commitment to perform his duties to the best of his ability.

9.  His chain of command recommended approval of the applicant's separation with a general, under honorable conditions discharge.  They also noted that the applicant was not entitled to have his case considered by an administrative separation board.

10.  The separation authority approved the recommendation for discharge of the applicant and directed issuance of a General Discharge Certificate.

11.  The applicant's DD Form 214 shows he was discharged on 22 January 1993 under the provisions of Army Regulation 635-200, paragraph 14-12b, with service characterized as under honorable conditions (general).  He had completed 3 years, 5 months, and 27 days of total active service.

12.  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.

13.  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 because a fair evaluation of his service was not given by his chain of command and his discharge was unjust.

2.  Records show the applicant enlisted in the Regular Army on 26 July 1989 and he was discharged under honorable conditions on 22 January 1993 after completing approximately 3 years and 6 months of his 4-year active duty service obligation. 

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's pattern of misconduct began in April 1991.  Over the course of 10 months he was formally counseled for several incidents of failing to meet the standards of performance as a Soldier.  He was subsequently charged with criminal assault (domestic violence) and obstructing a public servant.  In addition, he failed to complete his 4-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.

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)                                         AR20140018605



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018605



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1