IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000318 


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 under honorable conditions to honorable.

2.  The applicant states:

* he did not have other incidents of disrespect or misconduct
* depending on the cultural background, what could be considered disrespect by one may be viewed differently by others
* in his culture, he was raised to show respect to elders, parents, and superiors
* he feels sorry for what happened but believes his sergeant was verbally aggressive toward him
* the decision to separate him may have resulted from prejudice against his culture

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* death certificate for E____ R____ R____
* Red Cross message
* DA Form 4856 (Developmental Counseling Form)
* DA Form 2627 (Record of Nonjudicial Punishment (NJP) Under Article 15 of the Uniform Code of Military Justice (UCMJ))


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.  Having prior Reserve enlisted service, the applicant enlisted in the Regular Army on 14 July 1998 and he held military occupational specialty 13B (Cannon Crewmember).  He also executed a reenlistment on 7 November 2000.

3.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  He attained the rank of specialist/E-4.

4.  On 2 November 2001, he accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful toward a superior noncommissioned officer.

5.  His records show he was frequently counseled by members of his chain of command for various infractions including:

* multiple instances of disrespect
* failing to obey orders
* abusing the open door policy
* failing to follow instructions
* sleeping on duty
* dereliction of duty

6.  On 13 February 2002, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
14-12b, by reason of misconduct – pattern of misconduct.  Specifically, he cited the applicant's repeated instances of disrespect and dereliction of duties.  He recommended a general discharge under honorable conditions.

7.  His records contain a memorandum for record, dated 14 February 2002, indicating that in the presence of his chain of command (company commander, first sergeant, platoon leader, platoon sergeant, and team leader), and despite being advised of his rights and the implications of any decisions taken by him, the applicant refused to:

* acknowledge receipt of the notification of separation memorandum
* submit a statement on his own behalf
* request legal counsel

8.  The acknowledgement statement indicated:

	a.  His right to consult with legal counsel and be 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.

	b.  His right to submit a statement in his own behalf.

	c.  The implications of a general character of service in that he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge 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 a discharge under other than honorable conditions.

9.  On 13 February 2002, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct – pattern of misconduct.  The immediate commander recommended a general discharge under honorable conditions.

10.  On 27 February 2002, his intermediate commander recommended approval of his discharge with the issuance of a general discharge under honorable conditions.

11.  On 27 February 2002, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct – and directed his service to be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 3 May 2002.

12.  His DD Form 214 confirms he was discharged in accordance with paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct.  This form further confirms he completed 3 years, 9 months, and 20 days of creditable active service during this period.

13.  On 30 July 2004, the Army Discharge Review Board reviewed his discharge and determined it was proper and equitable.  Accordingly, it denied his petition for an upgrade.

14.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

15.  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 evidence of record shows the applicant displayed a pattern of misconduct ranging from multiple instances of disrespect and disobeying lawful orders to dereliction of duties.  Accordingly, his chain of command initiated separation action against him.

2.  Before initiating the separation action, his chain of command ensured he was appropriately counseled about his deficiencies and he was advised of the consequences of his actions.  Even when he was advised of his rights, he refused to acknowledge the separation action, refused to consult with counsel, and refused to submit a statement on his own behalf.

3.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence in the available records and he provides none to explain how his discharge was related to his cultural background or resulted from prejudice by his chain of command.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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 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)                                         AR20120000318



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ABCMR Record of Proceedings (cont)                                         AR20120000318



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