IN THE CASE OF:  

		BOARD DATE:  28 July 2015

		DOCKET NUMBER:  AR20140021324


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 discharge to an honorable discharge.

2.  The applicant states:

* he is requesting an upgrade for employment purposes
* he received a general discharge because of 3 returned checks that totaled $41.10
* he did not realize his account was low; however, he did take care of the problem before any charges were filed
* he regrets that the situation occurred; however, it has hindered his ability to seek employment with the Greenville County Police Department
* he believes that his failure of the Army Physical Fitness Test (APFT) after he injured his back contributed to his command's decision to discharge him

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a Dishonored Check Notification from the Army and Air Force Exchange Service (AAFES), dated 9 November 1993
* DA Form 705 (APFT Scorecard)
* an extract of his Department of Veterans Affairs (VA) rating decision
* an extract of an email communication between the applicant and the Greenville, South Carolina Chief of Police
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 29 May 1992.  After completing his initial entry training he was awarded military occupational specialty 92A (Equipment Record and Parts Specialist).  The highest rank/grade he attained during his period of active service was private first class (PFC)/E-3.

3.  Following the completion of his initial entry training, he successfully completed the Basic Airborne Course.  

4.  He was assigned to Headquarters and Headquarters Company (HHC), 18th Aviation Brigade at Fort Bragg, North Carolina, on or about 30 December 1992.

5.  He was formally counseled by members of his chain of command on at least five occasions between 7 June 1993 and 29 September 1993, for a myriad of performance and conduct-related matters, including:

* failing to be at his appointed place of duty
* disobeying orders and/or company policies
* missing PT formation
* disrespecting members of his chain of command or noncommissioned officer (NCO) support channel
* failing to maintain an appropriate level of physical fitness or body fat composition

6.  He accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 29 July 1993, for disobeying the lawful order of an NCO, on or about 19 July 1993, and for absenting himself from his unit, from on or about 19 July 1993 through on or about 20 July 1993.

7.  He failed a record APFT and was not in compliance with Army body fat standards on 29 September 1993.  It further appears he was given a rehabilitative reassignment or attachment to Company D, 3rd Battalion, 229th Aviation Regiment, in October 1993.

8.  He was formally counseled by members of his new chain of command on at least four occasions between 20 October 1993 and 28 October 1993, based on his lack of motivation and desire to be separated from the Army for failing the APFT.

9.  His record contains official memoranda from AAFES dated 9 November,      15 November, and 17 November 1993.  These memoranda are addressed to the applicant and were forwarded through his chain of command, informing him that he had written checks on 8 February 1993, 4 November 1993, 5 November 1993, 8 November 1993, and 9 November 1993, which were dishonored and/or returned due to insufficient funds.

10.  He accepted NJP, under the provisions of Article 15 of the UCMJ, on             9 December 1993, for passing worthless checks to AAFES in the amount of $200.02 between 8 February 1993 and 9 November 1993.

11.  He failed a second record APFT on 17 November 1993.

12.  The applicant's immediate commander notified him on 22 March 1994 of his intent to initiate separation action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – pattern of misconduct.  The applicant acknowledged receipt of this notification.

13.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions, and the rights available to him.  He waived consideration of his case by, and personal appearance before, an administrative separation board (as he had less than 6 years of active duty, he did not qualify for this board).  He elected not to submit a statement in his own behalf.

14.  The applicant's immediate commander recommended his separation from the Army on 22 March 1994, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – pattern of misconduct, and his failure of two consecutive record APFTs.

15.  The separation authority approved the applicant's discharge on 11 April 1994, under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an under honorable conditions (general) discharge.  
16.  The applicant was discharged from the Army on 21 April 1994.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  He completed      1 year, 10 months, and 23 days of net active service this period.

17.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  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 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 (emphasis added); however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade was carefully considered.

2.  His administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors that would have jeopardized his rights.  He consulted with counsel and was advised of the basis for the separation action.

3.  An honorable service characterization is appropriate when the quality of the Soldier's service has generally 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.  An under honorable conditions service characterization is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  

4.  The applicant's service was marked by incidents of unacceptable performance and misconduct.  Although an under other than honorable conditions discharge was normally appropriate for discharge under Army Regulation 635-200, chapter 14, it appears the applicant's chain of command considered the entirety of his military service and the severity of his misconduct and applied a certain amount of leniency when he was separated with a general discharge.  Accordingly, his discharge was appropriate under the circumstances.

5.  His overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.  In view of the foregoing, 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20140021324



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