IN THE CASE OF: BOARD DATE: 11 October 2012 DOCKET NUMBER: AR20120007146 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 general discharge under honorable conditions be upgraded to an honorable discharge. 2. The applicant states he was discharged over 10 years ago. 3. The applicant provides no additional 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. He enlisted in the Regular Army on 7 August 1985.  He immediately reenlisted on 28 December 1987. He was promoted to sergeant/pay grade E-5 on 28 July 1988. 3. His record of disciplinary actions included: a. On 13 August 1988, he accepted nonjudicial punishment (NJP) for larceny of ten wrist watches, a total value of $174.70, the property of the U.S. Government. His punishment included a suspended reduction to specialist/pay grade E-4. b. On 27 September 1988, the suspension of reduction to specialist was vacated due to his being in an unserviceable uniform in a public place. c. On 7 October 1988, he received a Bar to Reenlistment Certificate. d. On 1 February 1989, he accepted NJP for: * leaving, without authority, his appointed place of duty * failing to obey a lawful order from a noncommissioned officer e. On 8 June 1989, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. 4. On 14 June 1989, his commander notified him of his pending discharge proceedings for misconduct. The commander informed him of his right to: * consult with counsel * submit statements in his own behalf * consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 5. On 14 June 1989, after having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14, Army Regulation 635-200 for misconduct. He did not submit statements in his own behalf. 6. He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life. 7. On 7 July 1989, the appropriate authority approved the recommendation for discharge, waived the requirement for rehabilitative transfer, and directed he be issued a General Discharge Certificate. 8. On 27 July 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct. He had completed 3 years, 11 months, and 21 days of active service that was characterized as under honorable conditions (general). 9. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 10. 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 included a pattern of misconduct consisting solely of minor military disciplinary infractions. 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. b. 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. All requirements of law and regulations were met and his rights were fully protected throughout the separation process. He was properly and equitably discharged in accordance with regulations in effect. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no evidence of procedural or other errors that would have jeopardized his rights. 2. He had been promoted to sergeant, a position of authority and responsibility. In promoting him to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of him. As a sergeant, he was responsible for the welfare of those assigned under him. His consistent military disciplinary infractions violated this special trust and confidence. 3. He accepted NJP on three occasions and he did not complete the term of service he contracted for. Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel. It is clear his previous service was considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which was normally considered appropriate in chapter 14 separations. 4. The ABCMR does not upgrade discharges based solely on the passage of time. 5. Therefore, in view of the above, there is no basis to upgrade his discharge. 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) AR20120007146 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120007146 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1