IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017411 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017411 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017411 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 to an honorable discharge. 2. The applicant states an upgrade is requested because he has since matured and learned from his mistakes. He allowed personal issues to conflict with the manner of which he conducted himself as a Soldier. He requests an upgrade in order to enter back into the military as an honorable Soldier. 3. The applicant provided no additional documents with 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 22 June 2006, at the age of 18, and was awarded military occupational specialty 92Y (Unit Supply Specialist). 3. On 4 September 2007, a DA Form 4187 (Personnel Action) shows the applicant’s status was changed from present for duty to civilian confinement. His status was later changed from civilian confinement to present for duty effective 8 September 2007. 4. On 16 September 2007, the applicant was apprehended and arrested for wrongfully possessing an unregistered weapon. 5. On 6 November 2007, the applicant underwent a mental status evaluation due to his act of misconduct. He was found to have normal behavior, unremarkable mood, clear thinking process, and good memory. He was fully alert and orientated. He was mentally responsible and had the mental capacity to understand and participate in administrative proceedings. A military psychiatrist indicated he did not suffer from any mental diseases or defects. He was psychiatrically cleared for any administrative action deemed appropriate by his command. 6. On 20 November 2007, the immediate commander notified the applicant of his intended separation action against him in accordance with (IAW) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for commission of a serious offense due to wrongfully possessing an unregistered firearm. The commander recommended a characterization of service of general under honorable conditions. 7. The applicant acknowledged receipt of his commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation 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 and rights that were available to him. He elected to submit a statement in his own behalf. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 8. Subsequent to the applicant's acknowledgement, his commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for commission of a serious offense. 9. On 7 December 2007, his intermediate commander recommended suspending the applicant’s discharge until 1 December 2008 (not to exceed 12 months), at which time if the action was not executed it will be remitted in accordance with (IAW) AR 635-200, paragraph 1-18. 10. On 12 December 2007, the separation authority suspended the discharge until 1 December 2008 (not to exceed 12 months), at which time if the action was not executed it would be remitted in accordance with (IAW) AR 635-200, paragraph 1-18. 11. On 1 April 2008, a DD Form 2708 (Receipt for Inmate or Detained Person), shows the applicant was released to his unit after being arrested and detained for civilian traffic warrants. The City of El Paso, TX, records show the applicant was charged with five traffic violations from 5 July 2007 to 15 August 2007. 12. On 3 April 2008, the separation authority directed the suspended separation be vacated. The reason was the applicant's conduct during the suspension period. The applicant proved that he had no further potential for rehabilitation. The separation authority also directed the immediate separation of the applicant under the provisions of AR 635-200, chapter 14-12c, with a general under honorable character of service. 13. On 14 April 2008 the applicant was discharged. He was issued a DD Form 214 (Certificate of Release or Discharge From Active Duty) showing he was discharged per the separation authority's directive. Based on his narrative reason for separation, he received a reentry code of 3. He had completed 1 year, 9 months, and 14 days of active service. 14. In August 2010, the Army Discharge Review Board (ADRB) determined that the reason for the applicant's discharge and the character of his service was both proper and equitable. The ADRB denied the applicant’s discharge upgrade request. REFERENCES: 1. 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 commission of a serious offense; if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM). 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. Paragraph 3-7a states 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. 2. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows reentry code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. DISCUSSION: 1. The applicant's administrative discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense (wrongfully possessing an unregistered weapon) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The reason and type of discharge directed were appropriate and equitable based on the facts of the case. 2. The applicant's chain of command and separation authority granted him relief when it suspended his separation action for 1 year. It appears he was advised that if he continued to have infractions with the law (military or civilian) the suspended separation action would be vacated and he would be immediately separated. At some point, his civilian traffic violations were reported to the separation authority who in turn vacated the suspended separation action. 3. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 19 years of age, had satisfactory completed training and had served for over 1 year before any negative incidents were documented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017411 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017411 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2