RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2007
	DOCKET NUMBER:  AR20070006961 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Chester A. Damian

Member

Mr. Edward E. Montgomery

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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge was improper because his Company Commander failed to follow the separation guidelines in accordance with Army Regulation 635-200 (Personnel Separation), Chapter 14, separation for misconduct.  He states that his commander failed to provide adequate counseling prior to initiating Chapter 14 separation procedures.  He further states that he acknowledged that his loss of proper military bearing and poor judgment when dealing with his co-workers and superiors was improper and needed to be addressed accordingly.  He states the punishment did not "fit the crime."

3.  He states, in effect, that the stigma of his general discharge and the character of service as misconduct did not go away and it has limited his employment opportunities.  He states the characterization of his discharge and the reason for separation made employers focus on his minor deficiencies and discounted his many accomplishments while he served on active duty.  He served for five and a half years on active duty and acted dishonorably three times, which his commander and potential employers did not take into account.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); Department of the Army Certificates for the Army Commendation Medal, Achievement Medal, and Army Good Conduct Medal; several copies of Certificates of Achievement and Commendation, Letter of Commendation, and character statements; and a copy of an extract from Army Regulation 635-200.

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's military records show that he entered active duty on  
20 November 1986.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 67V (Observation/Scout Helicopter Repairer).  His highest pay grade held was pay grade E-4.

3.  His records show that between 1987 and 1989 he served honorably.  On
24 September 1990, he immediately reenlisted into the Regular Army for four years.

4.  On 8 October 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language towards a superior noncommissioned officer by using profanity towards him.

5.  On 15 November 1991, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being drunk and disorderly, disrespectful in language towards a noncommissioned officer and a superior commissioned officer, failure to obey a lawful order, and without authority willfully damage and destroy military property of a value of $75.00. 

6.  On 17 February 1992, the applicant received counseling for insubordination towards a commissioned officer (Warrant Officer) for using profanity towards the officer.  He was also informed during the counseling that due to his offenses in the past and his demonstrated unprofessionalism and loss of military bearing, he was being recommended for separation.  On 24 February 1992, the applicant acknowledged and concurred with the reasons for the counseling.

7.  On 8 April 1992, the applicant's commander recommended separation under the provisions of Army Regulation 635-200, chapter 14-12b (2) based on a pattern of misconduct, consisting of numerous acts of insubordination and disrespect towards noncommissioned and commissioned officers in his chain of command.  He was advised that the least favorable characterization of service he could receive was under honorable conditions (General Discharge).  The applicant acknowledged receipt of the recommendation.

8.  On 13 April 1992, he was advised of the rights available to him and the effects of a discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to submit a statement in his own behalf and his right to be represented by counsel. 

The commander also explained the applicant's waiver privileges and the withdrawal of waiver privileges.  He further understood that he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge.

9.  Within the recommendation for separation, it was stated that the applicant was given two Article 15s due to attitude and temper problems.  He was afforded a final opportunity to overcome his problems and to work out differences with his co-workers, at which point administrative actions were suspended.  However, his most recent incident generated the separation proceedings.

10.  On 14 April 1992, the recommendation for separation was approved by the appropriate authority.

11.  On 30 April 1992, the applicant was given a General Discharge Certificate for misconduct-pattern of misconduct.  He had completed a total of 5 years,  
5 months, and 11 days of active service.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.  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.

14.  Army Regulation 635-200 Personnel Separation, 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 (emphasis added), 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.
15.  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 requests that his general discharge be upgraded.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for misconduct-pattern of misconduct.

3.  The applicant stated that his commander failed to follow the separation guidelines in accordance with regulatory guidance for separation for misconduct and that he failed to provide adequate counseling prior to initiating separation procedures.  However, the evidence shows that the applicant received counseling.  He was also afforded the opportunity to overcome his attitude problems after his second Article 15 and had failed to do so.  Therefore, there is no basis for granting his request.

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____rtd__  ___cad__  ___eem__  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.




__________Richard T. Dunbar______
          CHAIRPERSON




INDEX

CASE ID
AR20070006961
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070927
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.