RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018634 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 that he was never given a second chance.  He states that a few guys from his platoon got more than two chances.

3.  The applicant provides in support of his application a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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.  On 27 November 1984, the applicant enlisted in the Regular Army in Newark, New Jersey, for 3 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was promoted to the pay grade of E-2 on 27 May 1985. 

3.  On 27 November 1985, the applicant was counseled for substandard performance.  During the counseling, he was informed that he was expected to meet set standards, and that his performance was weak when it came to getting up in the morning; working with his squad during clean up; following orders given by noncommissioned officers (NCOs); and in his physical condition.

4.  On 9 December 1985, the applicant was counseled for insubordination toward two NCOs, and for failure to obey a lawful order.  During the counseling, the applicant was negative and disrespectful, and he stated that he wanted "out of this company." 

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 10 December 1985, for failure to go to his appointed place of duty.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

6.  On 12 December 1985, the applicant was counseled for being disrespectful in language toward an NCO.  The applicant acknowledged receipt of the record of counseling and he denied the allegation of being disrespectful.  He also stated that he needed to see a psychiatrist.

7.  On 13 December 1985, the applicant was being counseled for low performance in the line of duty, when he began shouting at his commanding officer (CO) "I'm crazy, I don’t know what the hell I'm doing, you don't give a damn about me."  The CO noted that the applicant did what he pleased and did not listen to any NCOs.  The applicant acknowledged receipt of the record of counseling and he stated that his bed was made just like the beds of the rest of the squad.  He stated that his best friend was being turned against him, and that he had previously written a request to get out of the company or to see a doctor.  He stated that he was not himself anymore.

8.  The applicant was counseled again on 13 December 1985, for two incidents of failure to follow specific orders given by an NCO.  The record of counseling indicates that the applicant broke ranks in a company formation, using foul language directed at an NCO, and failing to follow the orders of an NCO.  During the counseling, he was told that he demonstrated insubordinate conduct to an NCO; and that his conduct was the poorest example of military bearing and professionalism that had ever been heard of in the battalion to which he was assigned.  The applicant was told that his conduct would not be tolerated and that he was being recommended for punishment under the Uniform Code of Military Justice (UCMJ).  The applicant acknowledged receipt of the record of counseling and he stated that all he wanted was to be transferred to another company or to be put out of the Army because he and his chain did not get along.  He stated that every effort to "slam" him was being made by his chain of command.

9.  The applicant was counseled again on 13 May 1986, 17 July 1986, and 6 August 1986, for being late for formation; being disrespectful to an NCO; and failure to repair.  The applicant was told that he was being recommended for punishment under the UCMJ.

10.  On 25 September 1986, NJP was imposed against the applicant for writing a bad check with the intent to defraud.  His punishment consisted of a verbal reprimand.
11.  On 17 October 1986, NJP was imposed against the applicant for wrongfully using a controlled substance (marijuana).  His punishment consisted of a forfeiture of pay in the amount of $149.00, 14 days of restriction, and 14 days of extra duty.

12.  On 3 February 1987, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct, commission of a serious offense, based on his use of illegal drugs.  He acknowledged receipt of the notification and, after consulting with counsel, he elected to submit a statement in his own behalf.  However, there is no statement from the applicant in the available records.

13.  The appropriate authority approved the recommendation for discharge on 9 February 1987 and he directed the issuance of a General Discharge Certificate.

14.  Accordingly, on 20 February 1987, the applicant was discharged, under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct, drug abuse.  The DD Form 214 that he was furnished at the time of his discharge shows that he completed 2 years, 2 months, and 24 days of net active service.  He was furnished a General Discharge Certificate.

15.  On 13 May 1996, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

16.  Army Regulation 635-200 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, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not substantiated by the evidence of record.  The evidence of record shows that he had NJP imposed against him for three separate acts of misconduct and he was counseled on numerous occasions as a result of his acts of indiscipline.  The applicant was provided numerous chances to become a quality Soldier and he opted not to do so.  He was discharged for his use of illegal drugs and the type of discharge that he received reflects his overall record of service, as his service was not fully honorable.   To upgrade his discharge to fully honorable would not be fair to those individuals whose service was truly honorable.

4.  Considering the nature of his offense, it does not appear that his general discharge is too harsh or severe.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LMD__  __JRM___  __JTM__  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.




___John T. Meixell    __
      CHAIRPERSON