IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080017197 


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 discharge under other than honorable conditions be upgraded.  He also requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he is a high school graduate or equivalent. 

2.  The applicant states that after he participated in a U. S. Army Criminal Investigation Command (USACIDC, also known as CID) activity to help capture a unit drug dealer and addicted noncommissioned officer (NCO), other unit members started pointing their fingers at him.  He had to become disruptive within the unit in order to deflect apparent suspicions among unit members.  He thought that the CID agents would stand up for him and assist him; however, he was left on his own and his behavior led to nonjudicial punishment and/or confinement.  He was ultimately told that he could get out under chapter 14 for patterns of misconduct and that his discharge would be upgraded to an honorable discharge 90 days after his discharge.  He adds that he recently requested a copy of his DD Form 214 and realized that his discharge had not been upgraded and that it also contains an inaccurate entry regarding completion of his General Education Developmental (GED) Diploma which he completed prior to entering active duty. 

3.  The applicant provides a copy of a letter, dated 22 September 2003, from the National Personnel Records Center in support of his request. 



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 records show he enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) on 8 March 1985.  Item 22 (Education) of his DD Form 1966/2 (Record of Military Processing-Armed Forces of the United States) shows he attended Saginaw High School, Saginaw, MI from September 1979 to June 1982, but did not graduate.  

3.  The applicant’s records also show he was discharged from the DEP on 11 March 1985 and enlisted in the Regular Army for a period of 3 years on 12 March 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  The highest grade he attained during his military service was private first class (PFC)/E-3.

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record), Item 17 (Civilian Education and Military Schools) shows the applicant attended Saginaw High School but did not graduate.  The applicant reviewed this document on 
7 May 1985 and authenticated it with his signature indicating that everything was correct.  There is no evidence in the applicant’s records that shows he completed the requirements for award of the GED or that he received his GED.

5.  On 19 December 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his appointed place of duty without authority, disobeying a lawful order from a superior NCO, and being disrespectful in language towards a superior 
NCO, on or about 14 November 1986.  His punishment consisted of reduction to 


private (PVT)/E-1, a forfeiture of $329.00 pay per month for two months, and correctional custody for 30 days.  He appealed his punishment on 9 January 1987; however, his appeal was denied on 20 January 1987.  Furthermore, on 
4 February 1987, the punishment of correctional custody for 30 days was mitigated to 10 days of extra duty and 10 days of restriction.  

6.  On 23 December 1986, by memorandum, the applicant’s immediate commander initiated action to permanently disqualify him from the Personnel Reliability Program (PRP) based on his misconduct.  The applicant was furnished a copy of this disqualification memorandum; however, he elected not to submit any written explanation or rebuttal.  

7.  On 9 March 1987, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his continued misconduct.  The immediate commander remarked that the applicant’s conduct had been subpar and had a negative influence on the younger Soldiers within the unit.  He had attempted to manipulate the system for personal gain on numerous occasions which put a strain on his chain of command.  The applicant was furnished a copy of the bar; however, he refused to sign.  The bar was ultimately approved by his battalion commander on 11 March 1987.  

8.  On 31 March 1987, the applicant again accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for disobeying a lawful order (twice) from a superior NCO on or about 30 January 1987 and 2 February 1987, and breaching the restraint imposed during his correctional custody by continuing to be disorderly, disruptive, and willfully disobeying orders during the period 
21 January 1987 through 2 February 1987.  His punishment consisted of a forfeiture of $300.00 pay per month for 2 months, 45 days of restriction, and
45 days of extra duty.  He appealed his punishment on 9 April 1987; however, his appeal was denied on 21 May 1987.  

9.  On 24 July 1987, the applicant’s commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 
14-12b of Army Regulation (AR) 635-200 (Personnel Separations), for misconduct.  Specifically, the commander stated the applicant had become a perpetual nuisance to his chain of command and he vehemently resisted all efforts to make him a quality and productive Soldier.  

10.  On 7 August 1987, the applicant acknowledged receipt of the commander's intent to separate him.  He was subsequently advised of the basis for the contemplated separation action for misconduct, the type of discharge he could 

receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He also acknowledged that he understood he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both, Federal and State laws.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and declined to make a statement on his own behalf. 

11.  On 7 August 1987, the applicant’s commander initiated separation action against him in accordance with chapter 14 of AR 635-200 for misconduct, citing his continued misconduct.  The commander further remarked that the applicant was recalcitrant to military authority and that due to his length of service, he assumed the role of an “elder statesman” in misguiding the younger Soldiers and that he would be disruptive in any unit to which he was assigned.  The commander recommended a waiver of the requirement for a rehabilitative transfer and that the applicant be issued an under other than honorable conditions characterization of service.

12.  On 12 August 1987, the battalion commander strongly recommended approval of the applicant’s discharge with an under other than honorable conditions characterization of service.  The battalion commander remarked that the applicant had been a perpetual nuisance to his chain of command for over a year and that he had challenged the authority of his superiors and had no potential for further useful service.  

13.  On 14 August 1987, the brigade artillery commander remarked that he found the applicant's duty performance was characterized by behavior which rendered him repeatedly subject to punitive actions and that the applicant had no regard for authority and he was not likely to be rehabilitated.  The brigade artillery commander recommended that the applicant be separated for misconduct with the issuance of an under other than honorable conditions discharge.

14.  On 19 August 1987, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of AR 635-200 by reason of misconduct and directed the applicant be furnished an under other than honorable conditions characterization of service.  



15.  Accordingly, the applicant was discharged on 26 August 1987.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions character of service.  This form further confirms he completed a total of 2 years, 5 months, and 15 days of creditable active military service.  Item 16 (High School Graduate or Equivalent) of this form shows the entry “No.” 

16.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

17.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge characterized as under other than honorable conditions was normally appropriate for a Soldier separated 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.

18.  AR 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. 

19.  AR 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’s contention that his discharge should be upgraded because he was protecting himself from others who suspected he was working with the CID was carefully considered; however, it is not sufficiently mitigating in granting the applicant the requested relief.

2.  The evidence of record shows the applicant displayed a pattern of misconduct.  Accordingly, his chain of command recommended separation under the provisions of chapter 14, AR635-200, due to a pattern of misconduct.  Absent his continued misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or a general discharge.  

4.  With respect to the applicant’s education, the evidence of record shows that upon enlisting in the DEP, the applicant indicated that he did not complete high school.  Furthermore, he authenticated his DA Form 2-1 which also indicates he was not a high school graduate.  Additionally, there is no evidence in his records and he did not provide any documentary evidence that shows he completed his GED.  Therefore, the “No” entry on his DD Form 214 appears to be correct. 

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.



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      _______ _   _______   ___
               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)                                         AR20080017197



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ABCMR Record of Proceedings (cont)                                         AR20080017197



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