BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110014671 


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 under honorable conditions discharge to an honorable discharge.

2.  The applicant states he has suffered discrimination throughout his career in obtaining civil service jobs and the loss of education benefits from the Department of Veterans Affairs (VA).  While he was still in the service he suffered the embarrassment and stigma of a loss of rank and pay, extra duty, restriction to the barracks, and being pulled from his duties as a military police officer.  He believes his marriage was adversely affected and eventually ruined as a result of the impact of these actions against him.

3.  He further states he believes his discharge status was the result of an unfortunate series of events which started when his wife began working at the post officers club.  They were going through a rough period in their marriage and she became friendly with the post commanding general.  It seemed as if his entire chain of command became involved in his marital affairs.  Prior to the dissolution of his marriage he never had any disciplinary actions against him.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 6 belt certificate in American combat karate 
* Military police school diploma
* Certificate of appreciation, Seneca Army Depot
* 4 certificates of completion
* 3 U.S. Army certificates of achievement
* General Education Development (GED) certificate
* General discharge certificate
* Certificate for civil claims and investigations
* Asset recovery agent
* 2 Shotokan certifications
* Newspaper clippings
* New Mexico Highlands University children's self defense
* Letter of recommendation
* Police athletic league, Puerto Rico
* NRI school of gunsmithing course, units 1 - 5
* Distinguished martial artist of 1999
* 2 Aikido and Aikijujutsu certificates
* VA Disability award letter
* Letter of eligibility, New York state civil service commission
* 2 security guard training certificates
* Résumé
* 2 Forklift safety course certificates
* 4 vocational training certificate

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 enlisted in Regular Army duty on 19 October 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 95B (Military Police).  The highest rank he attained while serving on active duty was private first class/E-3.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was stationed at Fort Belvoir, VA from on or about 11 March 1983 to 28 February 1985, where he was assigned to the 437th Military Police Company.
4.  His records reveal a history of negative counseling by his chain of command for various infractions including: 

* disobeying a lawful order
* careless attitude
* lack of self discipline 
* inappropriately addressing superiors
* being argumentative
* allowing personal problems to impact duty performance
* not being a team player
* failure to provide monetary support to his family

5.  His records show he receive punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three occasions:

* On 11 October 1983, for being absent without leave (AWOL) and failure to obey an order or regulation
* On 9 October 1984, for driving a one-quarter ton (M151A2) vehicle in a reckless manner by traveling at a speed of 52 miles per hour in a posted 40 mile per hour zone.
* On 28 January 1985, for disobeying a lawful order to report 

6.  On 16 January 1984, he received a letter of reprimand from his company commander.  The letter stated he was negligent because he failed to control his vehicle resulting in an accident while in the performance of his duties as a military police officer.

7.  A DA Form 2823 (Sworn Statement) in his record shows that on 24 October 
1984, at approximately 3:00 am, he was seen climbing out of a female's barracks room window.  His records contain a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 27 October 1984, indicating that his company commander questioned him about his suspected violation of the company's visitation policy.

8.  His records contain 3 dishonored check notifications from the Army and Air Force Exchange Services for:

* 5 October 1984, for 3 checks totaling $150.00
* 11 October 1984, for 1 check totaling $45.00
* 18 October 1984, for 3 checks totaling $120.00


9.  On 17 December 1984, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct.  On this same day, the applicant acknowledged receipt of the notification.

10.  On 18 December 1984, he consulted with legal counsel and he was advised of the basis for the contemplated separation, the possible effects of a general under honorable conditions discharge, and the rights available to him.  He indicated his intent to submit statements in his own behalf.

11.  On 24 January 1985, his company commander completed a DA Form 
4126-R (Bar to Reenlistment Certificate) recommending that the applicant not be permitted to reenlist.  The applicant signed the form and indicated that he did not wish to make a statement on his behalf.

12.  On 25 February 1985, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct.

13.  On 28 February 1985, he was discharged accordingly.  His DD Form 214 shows he received a general under honorable conditions discharge by reason of a pattern of misconduct.  He completed 2 years, 4 months, and 10 days of creditable active service.  He was discharged in the rank/grade of private/
E-2.

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

15.  The applicant has provided several certificates of completion showing that he has attained the level of black belt in karate, completed his GED, and several vocational and training courses.  He has also provided certificates of achievement and appreciation, newspaper clippings and documentation to show he has taught children's self defense courses.

16.  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.

17.  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 dissolution of his marriage is unfortunate; however he has not provided convincing and clear cut evidence to show that the problems in his marital relationship caused his misconduct.

2.  His request that his record be corrected to upgrade his general under honorable conditions discharge to an honorable discharge was carefully considered and determined to be without merit.

3.  His record of indiscipline clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Further, the applicant's discharge accurately reflects his overall record of service.

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)                                         AR20110014671



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ABCMR Record of Proceedings (cont)                                         AR20110014671



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