IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021873 


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 general discharge to an honorable discharge.

2.  The applicant states:

* he was harassed and did not receive fair treatment
* denied E-5 promotion
* he was reduced in rank for failing to attend a course
* he was ordered to duty after being placed on a 48-hour profile for bed rest
* no rations were provided so he made arrangements to be fed
* he was wrongfully reduced to pay grade E-2 for disobeying a lawful order
* the discharge does not reflect his true character of service
* he is an upstanding citizen and was an outstanding Soldier
* he received awards and several letters of commendation
* he was a two-time U.S. Army Europe talent champion
* he completed his first term honorably
* he desires to become a member of the U.S. Army Chaplains Corps
* he is actively involved with Christian services
* he is an associate and Senior Pastor and Seminary graduate and professor
* he received several community service awards

3.  The applicant provided a copy of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* college transcript
* bachelor of theology certificate
* master of theology certificate
* doctorate degree of divinity
* completion for seminary extension
* certificate of ordination
* certificate of license to minister
* certificate from the School of Evangelism
* certificate of appreciation
* State of Texas insurance agent certification
* a copy of certificate of completion (long term care)
* Certificate of Accomplishment Bankers Life &Casualty  

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 29 September 1981, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 63H (Track Vehicle Repairer).  The highest rank/grade he attained while serving on active duty was specialist pay grade E-4.

3.  Between May and September 1986, the applicant was counseled over
13 times for numerous disciplinary infractions.

4.  Between August and October 1986, the applicant received three nonjudicial punishments (NJPs) for two incidents of failing to go at the prescribed time to his 

appointed place of duty, for going from his appointed place of duty without proper authority, and for disobeying a lawful order from his superior noncommissioned officer.  His imposed punishment consisted of forfeitures, restrictions, and extra duties

5.  On 16 October 1986, the unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The unit commander also stated discharge for unsuitability was not deemed appropriate because the Soldier’s behavior was not due to an inability to satisfactorily perform within the meaning of suitability.  The commander adds that the applicant was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return to duty as a well-trained Soldier; however, his behavior resumed.  The applicant’s action demonstrated little desire for returning to duty.  The commander recommended waiver of the requirement for further counseling and rehabilitation.

6.  On 18 October 1986, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that an under other than honorable conditions discharge is recommended.  The applicant also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if less than an honorable discharge was issued to him.  He further understood that as the result of the issuance of a discharge under less than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant elected not to submit a statement in his own behalf.

7.  On 23 October 1986, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct and directed the issuance of a General Discharge Certificate.  On 27 October 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct.  He completed a total of 5 years, 1 month, and 1 day of active service during this period of service.

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

9.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

10.  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 contentions and the documents he submitted in support of his application were carefully considered and found to be insufficient in merit.  Good post-service conduct alone is not a basis for upgrading a discharge.  

2.  The evidence of record shows the applicant received three NJP’s and he was formally counseled on 13 different occasions for a numerous disciplinary infractions. These offenses were acts of misconduct, which warranted a less than fully honorable discharge.

3.  As a result, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance of duty expected of Army personnel.

4.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable or general discharge.

5.  In view of the above, there is no basis for granting his requested relief.


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)                                         AR20100021873



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ABCMR Record of Proceedings (cont)                                         AR20100021873



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