IN THE CASE OF:
BOARD DATE: 20 September 2011
DOCKET NUMBER: AR20110003401
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 upgrade of his general discharge.
2. The applicant states the 10 year waiting period has elapsed. The explanation for his nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) is that he almost lost his life in Panama. His disobedience of a direct order led to his separation. He made mistakes that cost him his career.
3. The applicant provides no documentation to support his request.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army and entered active duty on 9 July 1985. He completed training as a light weapons infantryman and was assigned to an infantry company at Fort Ord, California where he qualified as a marksman with the M-16 rifle and as a sharpshooter with the hand grenade.
2. He was advanced to private E-2 on 1 January 1986 and E-3 on 1 November 1986.
3. The applicant's record of misconduct includes:
* 8 May 1987 counseling for malingering
* 8 May 1987 counseling for possession of alcohol by a minor and disrespect toward a senior noncommissioned officer by pouring beer out of his second floor window and onto the window of the First Sergeant
* 1 June 1987 counseling for failure to pay debt
* 22 September 1987 counseling for poor job performance and indiscipline
* NJP for disrespectful language on 17 December 1987 by saying, "F____ you SGT Summer"
* 5 January 1988 counseling for being unprepared for upcoming evolutions and racist remarks
* 7 February 1988 counseling for absence from his appointed place of duty
4. At an 11 February 1988 mental status evaluation the applicant exhibited passive-aggressive behavior. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was cleared for administrative separation processing.
5. The company commander recommended that the applicant be separated with a general discharge due to a pattern of misconduct as evidenced by the above incidents.
6. The applicant consulted with counsel and was advised that he could expect to encounter substantial prejudice in civilian life as a result of the discharge. He acknowledged that he could apply to the Army Discharge Review Board and the Army Board for the Correction of Military Records for upgrade of the discharge. He declined to submit statements in his own behalf.
7. The battalion commander recommended approval of the recommended separation and the separation authority so directed.
8. On 15 March 1988 the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, chapter 13 for a pattern of misconduct. He had completed 2 years, 8 months and 7 days of creditable active duty service.
9. There is no available evidence that the applicant ever applied to the ADRB for upgrade of the discharge.
10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides in:
a. paragraph 3-7a 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 members 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.
b. chapter 14 the policy and procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 Soldiers 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant states the 10 year waiting period has elapsed. The explanation for the NJP is that he almost lost his life in Panama.
2. There is no waiting period for upgrading a discharge and no evidence to substantiate the applicant's other assertion. In view of the applicant's numerous acts of disciplinary infractions, his early separation and general discharge were quite appropriate.
3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
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) AR20110003401
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ABCMR Record of Proceedings (cont) AR20110003401
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