BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000406 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 BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000406 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. BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160000406 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 discharge to honorable. 2. The applicant states: a. He wants his discharge upgraded for employment purposes. He is currently applying for a position with the U.S. Postal Service and he was told by a friend that he could petition to have his discharge upgraded after being out of the service for 1 year. b. He is in no position to dispute any error or injustice on his part without any evidence of his own. He was young and unfair advantage was taken of his situation. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 was born on 10 August 1975. He enlisted in the Regular Army on 8 November 1994 for a period of 3 years and 18 weeks. He completed his training and was awarded military occupational specialty 19D (cavalry scout). 3. On 8 September 1995, he was counseled in writing for not being at the appointed place of duty in the proper uniform. 4. On 16 October 1995, nonjudicial punishment was imposed against him for: * failing to go at the prescribed time to his appointed place of duty on 8 September 1995 * disobeying a lawful order from a noncommissioned officer to return to duty with his duffle bag and rucksack on 8 September 1995 * disobeying a lawful order from a superior commissioned officer not to consume alcohol on 30 September 1995 * violating a lawful general regulation by wrongfully consuming alcohol on 30 September 1995 * making a false official statement on 30 September 1995 * willfully damaging military property on 30 September 1995 5. On 6 December 1995, he was notified of his pending separation for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. The unit commander cited his NJP for various offenses as the reasons for the proposed action. 6. On 7 December 1995, he consulted with counsel. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected to submit a statement in his own behalf. He stated: a. He doesn't want to be "chaptered out" of the Army. His pride in being an airborne Soldier and in the Army is something he doesn't want to lose. He understands the things he has done in the past were wrong. b. With the development influenced by the Army life, he feels he will not only never fail in these ways again, but he will strive to make up for any events in the past. Given the opportunity, he knows he can excel. c. The standards that an airborne Soldier must live up to are much higher than a regular Soldier. His performance in the company decathlon and his high Army Physical Fitness Test score help to demonstrate his pride and motivation. d. With the opportunity and guidance, he knows he can bring the rest of his life up to his physical fitness standard. 7. The separation authority approved the recommendation for discharge and directed the issuance of a general discharge. 8. On 19 January 1996, he was discharged under honorable conditions (general) for misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 1 year, 2 months, and 12 days of creditable active service. 9. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Paragraph 14-12c provides that Soldiers are subject to separation for commission of a serious military or civil 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. The issuance of 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 Soldier's overall record. 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. c. There is no automatic upgrading by any government agency. Upgrading is considered only upon application to the ABCMR or the Army Discharge Review Board. DISCUSSION: 1. The applicant contends he was young; however, age is not a sufficiently mitigating factor. He was 19 years of age when he enlisted and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. His record of service included one nonjudicial punishment for various infractions, including disobeying a lawful order from a superior commissioned officer and making a false official statement. 3. His administrative separation for misconduct was accomplished in compliance with the applicable regulation with no indication of procedural errors that would have jeopardized his rights. 4. Since a discharge under other than honorable conditions is normally appropriate based the authority and reason for his discharge, the fact that he was issued a general discharge under honorable conditions indicates his commander carefully considered his entire record of service. 5. There is no automatic upgrading of the character of service, regardless of the passage of time. Upgrading is considered only upon application to the ABCMR or the Army Discharge Review Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000406 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000406 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2