IN THE CASE OF:	  

		BOARD DATE:	        30 DECEMBER 2008

		DOCKET NUMBER:  AR20080017289 


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 an upgrade of his discharge.

2.  The applicant states that his discharge should be upgraded in light of the fact that he was protecting the wife of his sergeant from spousal abuse.  He adds that he helped her obtain an apartment to get away from the abuse and did not want to report his sergeant to the authorities at the time.  However, he was falsely charged with living with her, but his clothes and belongings were still in his barracks room. 

3.  The applicant did not provide any additional documentary evidence 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 that he enlisted in the Regular Army for a period of 4 years on 2 October 1984.  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 specialist four (SP4)/E-4.

3.  The applicant’s records show he was awarded the Army Achievement Medal, the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  On 30 May 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 3 April 1985 and wrongfully using cocaine, on or about 3 April 1985.  His punishment consisted of reduction to the rank/grade of private (PVT)/E-1, forfeiture of $310.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.  

5.  On 29 August 1985, the applicant received a letter of reprimand from his company commander for defaulting on checks written to a local establishment on or around Fort Ord, California.

6.  The applicant's record reveals more NJP under the provisions of Article 15 of the UCMJ, as follows:

	a.  on 15 May 1986, for twice disobeying a lawful order from a superior noncommissioned officer (NCO), on or about 12 April 1986.  His punishment consisted of reduction to private PV2/E-2 (suspended for 90 days), forfeiture of $167.00 pay, and 14 days of extra duty;

	b.  on 5 January 1987, for being derelict in the performance of his duties in that he willfully failed to maintain proper contact with his unit during Division Ready Brigade (DRB)-1 status, on or about 22 November 1986, and for absenting himself from his place of duty on 24 November 1986.  His punishment consisted of forfeiture of $100.00 pay for one month; and

	c.  on 28 May 1987, for making a false official statement to his commanding officer, with intent to deceive, that his name was not on a lease with a female, on or about 19 May 1987, and making a false official statement to his commanding officer, with intent to deceive, that he borrowed another Soldier's car and drove it back to Fort Ord, California, and that he gave his car keys back on 17 May 1987, on or about 19 May 1987.  His punishment consisted of reduction to private first class (PFC)/E-3, forfeiture of $160.00 pay for one month, and 14 days of restriction.

7.  On 21 May 1987, the applicant was issued a second letter of reprimand by his company commander for his involvement with another Soldier's wife and openly having an adulterous behavior with her.  

8.  On 9 June 1987, the applicant accepted more NJP under the provisions of Article 15 of the UCMJ for breaking restriction.  His punishment consisted of reduction to PV2/E-2, forfeiture of $150.00 pay for one month, and 14 days of extra duty.  

9.  On 16 June 1987, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b and c) of Army Regulation (AR) 635-200 (Personnel Separations), for a pattern of misconduct.  The specific basis of the recommendation was breaking restriction, making false statements, being derelict in the performance of his duties, disobeying orders, failure to pay just debt, numerous incidents of failure to report, being disrespectful, and wrongfully using marijuana and cocaine.

10.  On 16 June 1987, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation for a pattern of 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 waived consideration of his case by an administrative separation board and waived personal appearance before such board.  

11.  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of a discharge under other honorable conditions, he could also encounter substantial prejudice in civilian life and that if the discharge action was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 




12.  On 16 June 1987, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b and c) of AR 635-200 for a pattern of misconduct.  The immediate commander further requested a waiver of the requirements for rehabilitation because further rehabilitation would have created serious disciplinary problems or hazards to the military mission and to the applicant and would not have produced the quality Soldier desired by the Army.  The immediate commander further recommended an under other than honorable conditions characterization of service.

13.  On 17 June 1987, the applicant’s intermediate commander recommended a waiver of the rehabilitation requirements because rehabilitation would not have produced the quality soldier desired by the Army.  He further recommended the applicant be separated with an under other than honorable conditions discharge characterization.

14.  On 26 March 1991, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12c of AR 635-200 for misconduct with an under other than honorable conditions discharge.  On 7 August 1987, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows he was discharged for misconduct-commission of a serious offense with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 10 months, and 6 days of creditable active military service.

15.  On 24 July 1997, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.  However, the ADRB determined that the reason and authority for his discharge should be changed from 'misconduct-commission of a serious offense" to "misconduct."  Accordingly, the applicant was issued a new DD Form 214 to reflect the correction.

16.  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 under other than honorable conditions was 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.
17.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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 contends that his discharge should be upgraded.

2.  Contrary to the applicant's contention that he was discharged because he was falsely charged with living with the wife of his sergeant, the evidence of record shows that the applicant amassed several instances of NJP throughout his military service for various offenses ranging from minor infractions of breaking restriction, making false statements, being derelict in the performance of his duties, disobeying orders, failing to pay just debt, failing to report, being disrespectful, to the more serious offenses of wrongfully using marijuana and cocaine as well as an adulterous relationship with the wife of his sergeant.

3.  The evidence of record further shows that the applicant’s 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.  Furthermore, the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14, AR 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct   

4.  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 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.




      _______ _XXX   _______   ___
               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)                                         AR20080017289



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ABCMR Record of Proceedings (cont)                                         AR20080017289



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