IN THE CASE OF:	  

		BOARD DATE:	
		DOCKET NUMBER:  AR20080010717 


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, in effect, that his general, under honorable conditions, discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he believes his records and the discharge he received are unjust.  He states that he had a company commander who was the type of individual that it was hard to discuss and explain things to.

3.  The applicant states, in effect, that his company commander did not want for troops to go to school so they could go on and apply for promotions quicker and become more professional in their careers.  He [the applicant] had joined the military "to be all he could be" and was under a very heavy impression that this individual would not allow him to do that.  The applicant started graduate school and when his company commander found out, he practically "blew his top."  After explaining to him that his past commander approved of his continuing his schooling, the company commander changed things on purpose just to make his situation harder for him to attend school.

4.  The applicant states, in effect, that he went above his company commander to his brigade commander and when the brigade commander spoke to him on the matter, due to his open door policy, his company commander blew his top.  He adds that at this time, the Army was offering early outs to "91A Medics"; so, he took the option and left the Army.  Because his company commander knew 

that he had gone to the brigade commander, he asked that the discharge be downgraded to a general, under honorable conditions, discharge.  The company commander actually considered his [the applicant's] action to be misconduct and therefore, his discharge was downgraded even though the brigade commander's policy was given to him in writing by the applicant.

5.  The applicant states, in effect, that he was under the impression that his discharge was "general, under honorable conditions," but certainly not due to misconduct from simply going to his brigade commander under his open door policy.  The applicant concludes by explaining that his company commander was angry because he went over his head to the brigade commander to solve the school attending matter and this made the company commander angry.  This, he states, is the reason he is requesting the Army Board to upgrade his discharge to a fully honorable discharge.

6.  In support of his request, the applicant provides a cover memorandum addressed "To Whom this May Concern" in which he discusses:

	a.  his educational achievements and to which he appends 27 certificates, diplomas, transcripts of grade credits, and licenses and degrees he has earned post-Army service;

	b.  an explanation of his rationale for requesting an upgrade of his general, under honorable, discharge to a fully honorable discharge, and a reiteration of statements he made in his application to the Board; and 

	c.  a recap of all that was introduced for the Board to see that he has tried to be, "all that he could be."

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 US Army Reserve on 15 July 1985.  On 13 January 1986, he enlisted in the Regular Army and entered on active duty in the rank and pay grade Private First Class, E-3.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 91A, Medical Specialist.

3.  The applicant was assigned for duty at Fort Ord, California, on 16 June 1986 as a first duty station.  Initially, upon his arrival at Fort Ord, the applicant was assigned to Headquarter and Headquarters Company, 1st Battalion, 32d Infantry, as a medical specialist and later, on 5 August 1986, as a platoon aidman.

4.  On 13 July 1986, the applicant was promoted to the rank and pay grade, Specialist Four, E-4.  This would be the highest rank and pay grade the applicant would attain while he served on active duty. 

5.  On 29 May 1987, the applicant was reassigned to the MEDDAC (Medical Department Activity), and on 22 June 1987, he was further assigned to Headquarters and Service Company, 7th Medical Battalion.

6.  On 25 January 1988, the applicant was counseled for having failed to show up for duty at the prescribed time.  A DA Form 4856, General Counseling Form, was prepared to document this counseling.

7.  On 27 January 1988, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 25 January 1988, and for being disrespectful in language towards a noncommissioned officer on 21 January 1988.  The punishment imposed cannot be determined since it appears it was omitted, either intentionally or due to an administrative oversight; however, the unit commander directed that the DA Form 2627, Record of Proceedings under Article 15, UCMJ, be filed in the restricted portion of the applicant's OMPF (Official Military Personnel File).

8.  On 27 January 1988, the applicant was counseled after he received non-judicial punishment.  He was counseled that his behavior/conduct/performance was unacceptable and if he engaged in any further such activity, administrative separation action could be initiated against him.  He was counseled about the type of discharge he could expect to receive if he were separated pursuant to a Chapter 14 discharge.  A General Counseling Form was prepared to document this counseling.

9.  On 6 April 1988, the applicant was counseled for having failed to follow orders by leaving the field site and going home for lunch after he was told by a noncommissioned officer only a certain category of persons could leave the field site for lunch.  The applicant was also counseled for having returned to the field site in his POV (privately owned vehicle).  A General Counseling Form was prepared to document this counseling.

10.  On 19 April 1988, the applicant was counseled for having failed to follow orders by not getting a hair cut and for failing to press his uniform for an in-ranks inspection by the command sergeant major.  A General Counseling Form was prepared to document this counseling.

11.  On 3 May 1988, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found him to be mentally responsible, to have the mental capacity to understand and participate in proceedings, and able to meet retention requirements of Army Regulation 40-501,Chapter 3.  Based on this mental status evaluation, the psychiatrist cleared the applicant for any administrative action deemed appropriate by command.

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

13.  There is no evidence the Army was offering early outs to medics and there is no evidence the applicant applied for an early out for any reason at the time of his discharge.

14.  On 16 May 1988, the applicant's unit commander notified him that he was initiating action to discharge him from the Army under the provision of Army Regulation 635-200, Chapter 14, paragraph 14-12a, for minor disciplinary infractions.  The reason for his proposed action was he had received an Article 15 for failing to repair and disrespect to a noncommissioned officer and he had also received counseling statements for not being able to follow orders.  The applicant's unit commander notified him of his rights to seek counsel and indicated he was recommending that he receive a general discharge.  The applicant acknowledged the notification on the same date.



15.  On 16 May 1988, the applicant consulted with counsel and was fully advised of the basis for the contemplated action to accomplish his separation for minor disciplinary infractions under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12a.  The applicant was afforded the opportunity to provide a statement in his own behalf; however, he opted not to submit a statement.  The applicant did acknowledge that although he was furnished legal advice the choices he made in his statement were personally made by him.

16.  On 16 May 1988, the applicant's unit commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12a, prior to the expiration of his term of service, for minor disciplinary infractions.

17.  Item 12, of the recommendation for the applicant's discharge, reflects an evaluation of the applicant's conduct, duty performance, potential and includes a recommendation for the applicant's retention or separation by the members of his chain of command.  Responses are as follow:

	a.  Platoon Sergeant  -  Conduct = Poor, Duty Performance = Average, Potential = Poor.  The Platoon Sergeant recommended his separation.

	b.  Platoon Leader  -  Conduct = Poor, Duty Performance = Average, Potential = Poor.  The Platoon Leader recommended his separation.

	c.  First Sergeant  -  Conduct = Poor, Duty Performance = Average, Potential = Poor.  The First Sergeant recommended his separation.

	d.  Company Commander  -  Conduct = Poor, Duty Performance = Average, Potential = Poor.  The company commander recommended the applicant's separation and that he be issued a general, under honorable conditions, discharge.

18.  On 18 May 1988, the battalion commander recommended approval of the applicant's separation and further recommended that he be issued a general discharge.

19.  On 19 May 1988, the acting support command commander recommended approval of the applicant's separation and further recommended that he be issued a general discharge.  The acting support command commander approved a waiver of the applicant's transfer for rehabilitation purposes.


20.  The applicant's discharge was approved by the appropriate 7th Infantry Division and Fort Ord approval authority on 20 May 1988.  The request for a waiver of the applicant's rehabilitative transfer was approved and it was directed that he be discharged with a general, under honorable conditions, discharge.

21.  The applicant was discharged with a general, under honorable conditions, discharge in the rank and pay grade of Private First Class, E-3, on 3 June 1988, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12a.  On the date of his discharge, the applicant had completed 2 years, 4 months, and 21 days active duty service, with no time lost.  Item 24 (Separation Code), of the applicant's DD Form 214, shows the separation code, "JKN," and Item 28 (Narrative Reason for Separation) shows the entry, "Misconduct – Minor Disciplinary Infractions."

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

23.  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.

24.  The applicant in his request to the Board contends that his company commander did not want troops to go to school and that he [the applicant] had enrolled in graduate school:

      a.  Item 17 (Civilian Education and Military Schools), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows that at the time of his entry on active duty and his arrival at Fort Ord, the applicant had completed 176 semester hours of college.

      b.  A DA Form 2496, Disposition Form, Subject:  Education Level of [the applicant], dated 31 March 1986, and signed by an education center guidance counselor, shows that based on a review of a transcript from the State University of New York he had completed only 124 semester hours of college credit.

      c.  There is no evidence the applicant had completed the requirements for an undergraduate degree before his discharge from the Army.  The evidence shows the applicant received an Associate of Science Degree, in Environmental Hazardous Materials Technology, in June 1997, after his discharge from the Army.

      d.  In November 2007, the applicant's academic accomplishments were evaluated and he was at the time recognized as a candidate for a Master of Science Degree in Public Health and Urban and Regional Planning by California State University at San Jose.

25.  The applicant's post-service educational achievements are noteworthy.  It is noted from review of the dates entered on each that only two – a transcript from the Academy of Health Sciences, dated 6 February 1987 and a program completion notice for the Medical Laboratory Specialist Course, dated 10 September 1987, were prepared and issued to the applicant while he was in the Army.  All other documentary evidence the applicant submitted for review by the Board were dated in his post-service years.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  In the applicant’s request for an upgrade of his general, under honorable conditions, discharge to a fully honorable discharge, he contends that he had a company commander that was hard to discuss and explains things to, that his commander did not want troops going to school so they could go on and apply for promotions quicker and become more professional in their careers, and that his commander blew his top when he learned he had seen the brigade commander to resolve his education issues under the brigade commander's open door policy.  The applicant also contends that the Army was offering early outs to medics and he had applied for an early out under this option; however, all these contentions are not supported by the evidence in this case.

3.  The evidence of record shows the applicant was recommended for discharge for minor disciplinary infractions.  The evidence shows the applicant had received an Article 15 for failing to repair and for being disrespectful to a noncommissioned officer.  In additions, he had also received counseling statements for not being able to follow orders and for not reporting to his appointed place of duty at the prescribed time.
4.  The evidence shows that the applicant's was notified by his unit commander of the reasons for the recommendation for his discharge and he acknowledged the same.  In additions, the applicant was provided legal counsel and not only were his rights explained to him by counsel but the reasons for his intended discharge were also fully explained to him by counsel.  The applicant was given an opportunity to provide a statement in his own behalf while he was undergoing the discharge process but he opted not to submit a statement.

5.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The reason for discharge and the characterization of service are both proper and equitable.  The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general, under honorable conditions, discharge to a fully honorable discharge.

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

7.  The applicant's post-service educational achievements are noteworthy; however, given the applicant's poor record of conduct and performance, these achievements are not sufficiently mitigating to support granting the requested relief.  The applicant's record of military service was not sufficiently meritorious for the separation authority to support the issuance of a fully honorable discharge at the time of his discharge and it does not support an upgrade at this time.

8.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general, under honorable conditions, discharge to a fully honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




      _______ _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.

ABCMR Record of Proceedings (cont)                                         AR20080010717



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ABCMR Record of Proceedings (cont)                                         AR20080010717



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