RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010408 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W.S. Chun

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he tried hard to complete the term of his enlistment, but he was a marked man and the noncommissioned officers kept writing him up for every little thing.  He also states, in effect, he volunteered to serve his country and it would be fair to at least receive some benefits as a
U.S. Army veteran.  The applicant further states, in effect, that it has been
18 years since he was discharged from the Army, but his pursuit of government employment has been very trying for him because he is not eligible for veterans' preference.  He adds he is a family man now with four children and is seeking government employment because of the stability and great benefits it offers.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 November 1988, the date of his discharge.  The application submitted in this case is dated 7 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military service records show that he enlisted in the U.S. Army Reserve on 22 October 1987.  On 17 November 1987, he entered active duty in the Regular Army (RA) for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank the applicant attained while serving on active duty was private (E-1).  At the time of his discharge the applicant completed 11 months and 22 days of net active service.

4.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 June 1988.  This document shows that non-judicial punishment was imposed against the applicant for being disrespectful in language toward a noncommissioned officer (NCO) who was in the execution of his duties.  His punishment consisted of forfeiture of $156.00; 14 days extra duty; and restriction for 14 days to the company area, mess hall, chapel, and medical facilities, as deemed necessary.

5.  The applicant’s military service records contain a copy of a DA Form 2627, dated 26 June 1988.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for wrongfully communicating a threat to injure another Soldier, breaking restriction, and wrongfully and falsely altering a DD Form 689 (Individual Sick Slip) in words and terms that directed the applicant's assignment to quarters due to back pain.  His punishment consisted of forfeiture of $335.00 per month for 2 months, 45 days extra duty, and 45 days restriction.

6.  The applicant’s military service records contain a copy of a DA Form 2627, dated 1 September 1988.  This document shows that non-judicial punishment was imposed against the applicant for, without authority, failing to go at the time prescribed to his appointed place of duty; breaking restriction; and willfully disobeying a lawful order from an NCO, which it was the applicant's duty to obey. His punishment consisted of forfeiture of $335.00 per month for 2 months,
45 days extra duty, and 45 days restriction.

7.  On 28 September 1988, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct and that he was recommending the applicant receive an Under Other Than Honorable Conditions discharge.  The applicant was also advised of his rights.
The reasons for the proposed action were failing to go to his appointed place of duty; twice breaking restriction, twice failing to maintain sufficient funds in his bank account for payment of checks he wrote, being disrespectful in language toward an NCO, communicating a threat to an NCO, and wrongfully and falsely altering a DD Form 689.  The commander's recommendation for separation also included 15 DA Forms 4856 (General Counseling Forms) spanning the period
30 March 1988 to 26 July 1988 that show the applicant was provided performance counseling by NCO's and commissioned officers in his chain of command that was directed to improve his poor performance and misbehavior.  

8.  On 28 September 1988, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, and of the rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and did not submit statements in his own behalf.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

9.  The unit commander subsequently recommended his separation from service, and indicated that the applicant was resisting all rehabilitation efforts.  A DA Form 3822-R (Report of Mental Status Evaluation) was attached to the separation action indicating that the applicant had the mental capacity to understand and participate in the proceedings.  In the Remarks section of the document the physician assistant and physician made note that "[t]his Soldier is very manipulative."  The unit commander recommended separation of the applicant with an Under Other Than Honorable Conditions discharge.

10.  The battalion and brigade commanders reviewed the proposed discharge action and both recommended approval of the separation action with an Under Other Than Honorable Conditions discharge.  The Staff Judge Advocate reviewed the proposed separation action and found it to be legally sufficient for further processing.

11.  On 27 October 1988, the separation authority approved the recommendation for separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct and that he be issued an Under Other Than Honorable Conditions discharge.  Accordingly, the applicant was discharged on 8 November 1988.

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms that the applicant was issued a discharge Under Other Than Honorable Conditions.  This document further confirms that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 14-12b, and that the narrative reason for his separation was "Misconduct--pattern of misconduct."
13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

14.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy for the separation of enlisted personnel.  Paragraph 1-15 (Guidelines on Separations) provides, in pertinent part, when deciding retention or separation in a case, the commander will consider the Soldier's entire military record, including past contributions to the Army, assignment, awards and decorations, evaluation ratings, and letters of commendation; memoranda of reprimand or admonition, counseling records, records of non-judicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; and any other matter deemed relevant by the board or the separation authority.

16.  Army Regulation 635-200, Chapter 14, establishes policy and prescribes procedures for separating members because of misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and desertion or absence without leave.  This document shows, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

17.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his Under Other Than Honorable Conditions discharge should be upgraded to an honorable discharge because he was unfairly targeted by noncommissioned officers who counseled him on numerous occasions for minor infractions.  He also contends, in effect, that it has been 18 years since he was discharged from the Army, he is a family man now with four children, and the character of his discharge precludes him from obtaining veterans' preference for government employment and benefits.  

2.  There is no evidence of record, and the applicant fails to provide evidence, that shows he was treated unfairly or any differently than other Soldiers by NCO's in his chain of command.

3.  The evidence of record shows that at the time the applicant was being processed for administrative separation from the Army, his thinking process was clear and thought content normal.  The evidence of record also shows that he possessed the mental and emotional capacity to understand and participate in board and other legal proceedings.  The evidence of record further shows that the applicant was resisting all rehabilitation efforts.

4.  The evidence of record shows that, prior to his separation, the applicant was advised that his separation under other than honorable conditions may deprive him of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.  In addition, the applicant indicated that he understood these facts.  Moreover, the U.S. Army does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for government employment and benefits.  Consequently, the applicant provides insufficient evidence to support his request.

5.  The evidence of record shows that the applicant served on active duty less than 1 year.  During his period of military service (i.e., from 17 November 1987 to 8 November 1988) the applicant received performance counseling on at least
15 occasions and received non-judicial punishment three times for incidents relating to his poor performance and misbehavior; thereby demonstrating a pattern of misconduct.  The evidence of record also shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to an honorable discharge.  Furthermore, the applicant's record of service was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.  

6.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 November 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
7 November 1991.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM_  __JTM___  ___QAS   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.


2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




___ _Mark D. Manning______
          CHAIRPERSON




INDEX

CASE ID
AR20060010408
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/22
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19881108
DISCHARGE AUTHORITY
AR 635-200, Paragraph 14-12b
DISCHARGE REASON
Misconduct - Pattern of Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.