IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008102 


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 under honorable conditions discharge to a fully honorable discharge and correction of his narrative reason for separation from "misconduct - pattern of misconduct" to something more favorable.

2.  The applicant states he was harassed throughout his entire service in the Army.  Three Article 15's are filed in his service record, all for minor infractions.  The other Article 15's he received, which clearly show a pattern of harassment rather than misconduct, are not filed in his service record.  He also states that he never failed to report when and where ordered during his entire military service.

3.  The applicant provides copies of the following documents:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Article 15's
* his separation packet

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 Regular Army for a period of 4 years on 7 February 1984 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private/E-2.

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

4.  On 11 July 1985, he departed his Fort Campbell, KY, unit in an absent without leave status.  However, he returned to his unit on 12 July 1985.

5.  His records reveal a history of negative counseling by several members of his chain of command for various infractions including failure to report, failure to complete a company run, failure to complete a company road march, failure to use the chain of command, negative attitude, not being prepared for an inspection, failure to shave, unresponsive attitude, failure to follow instructions, and wearing a dirty uniform when reporting for charge of quarters duty.

6.  His records also reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* on 18 March 1986, for being disrespectful towards his superior noncommissioned officer
* on 28 July 1986, for twice failing to go at the time prescribed to his appointed place of duty
* on 29 September 1986, for failing to go at the time prescribed to his appointed place of duty on four separate occasions

7.  On 21 October 1986, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - pattern of misconduct.  The immediate commander remarked that the applicant failed to report on numerous occasions and failed to keep his job performance up to standards.

8.  On 27 October 1986, he acknowledged receipt of the commander's intent to separate him.  He consulted with counsel and he was 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 acknowledged that before completing the acknowledgement memorandum, he was afforded the opportunity to consult with legal counsel for consultation, military counsel, or civilian counsel, but declined the opportunity.

9.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.  He further elected not submit a statement in his own behalf.

10.  On 27 October 1986, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant had a "don't care attitude" and showed no signs of changing his conduct.  Rehabilitation in his case was a waste of time.  He expressed no desire to improve or become a better Soldier.

11.  On 27 October 1986, his intermediate commander reviewed the separation recommendation and recommended approval.  He remarked that the applicant had an extremely bad attitude and any attempt to rehabilitate him would have been met with little success.  His adverse impact on unit discipline required his immediate elimination from the Army.

12.  On 10 November 1986, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct.  He directed the applicant's service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 17 November 1986.

13.  His DD Form 214 shows he was discharged in accordance with chapter 14 of Army Regulation 635-200 with a character of service of under honorable conditions.  This form further also confirms he completed 2 years, 9 months, and 10 days of creditable active military service with 1 day of lost time.

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 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 included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action was taken to separate a member for misconduct when it was clearly established 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 could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was harassed and/or that his misconduct was for minor infractions was carefully considered; however, it was found to be without merit. 

2.  The applicant's record of service shows he displayed a pattern of misconduct as evidenced by his three instances of nonjudicial punishment and countless counseling regarding his infractions.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  Absent the pattern of misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his pattern of misconduct.  The only valid narrative reason for separation permitted under that paragraph was "misconduct - pattern of misconduct" which is properly shown on his DD Form 214.


4.  There is no evidence that the applicant was harassed throughout his military service or that he addressed his alleged harassment with his chain of command or other support channels.  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.  His repeated misconduct and failure to respond to counseling by members of the chain of command diminished the quality of his service.  Based on his record of indiscipline, his service clearly does not merit an upgrade to his 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)                                         AR20100008102



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)