BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130004574 


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 achieved several accomplishments in order to be considered an above average Soldier by his superiors and chain of command; however, an unfortunate incident at the U.S. Army Ranger School ultimately led to his misconduct and discharge from the Army.  He was physically assaulted and mentally and emotionally abused by a noncommissioned officer (NCO).  He claims his life was threatened by his first sergeant and he was verbally threatened by the senior NCOs at the school.  He prays the Board sees fit to upgrade his discharge since an honorable discharge would improve his opportunities for employment.  He further states he believes the evidence presented shows he was struggling only after enduring physical, psychological, and mental abuse from the officers and NCOs throughout and after his Ranger training. 

3.  The applicant provides:

* a self-authored statement
* Permanent Orders Number 10-16
* Permanent Orders Number 11-030
* Eight pages of Summary Court-Martial Proceedings (Summarized)
* DD Form 2586 (Verification of Military Experience and Training)


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 the Regular Army on 22 April 1994.  He completed one-station unit training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  He was transferred to Fort Hood, TX, for his permanent duty assignment.  Records show he received two Army Achievement Medals while assigned at Fort Hood.

3.  The available evidence shows he attended and successfully completed the
3-week Airborne Training Course at Fort Benning, GA, on 11 March 1996.

4.  The applicant's record contains two sets of Permanent Orders which award him the Ranger Tab and two sets of Permanent Orders revoking the Ranger Tab.  There is no evidence in the applicant's record to show he successfully completed U.S. Army Ranger Training.   

5.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 24 September 1996, for wrongfully using cocaine between 21 July and 20 August 1996.

6.  On 30 January 1997, charges were preferred against the applicant for absenting himself from his unit from 9 December 1996 to 9 January 1997.

7.  On 11 February 1997, the applicant pled guilty and was found guilty by a summary court-martial of violating Article 86 of the UCMJ for being absent without leave (AWOL) from his unit for the period 9 December 1996 to 9 January 1997.

8.  On 11 March 1997, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, chapter 14 for misconduct - commission of a serious offense.  The commander further stated his reason for taking this action was due to the applicant's AWOL status for the period 9 December 1996 through 9 January 1997.  The commander recommended a general discharge.

9.  On 11 March 1997, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  

10.  The separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14-12c, and directed that he be issued a General Discharge Certificate.  On 4 April 1997, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was separated for misconduct.  He completed a total of 2 years, 10 months, and 13 days of creditable active military service with time lost for the period 10 December 1996 through 8 January 1997.

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

12.  The applicant provides copies of two Army Achievement Medals and a copy of his summarized summary court-martial proceedings which shows, at the time of the proceedings, he presented evidence in the form of sworn statements by Soldiers and family members who testified in support of the applicant.

13.  Army Regulation 635-200 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 include minor disciplinary infractions, a pattern of misconduct - commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that 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 may direct a general discharge if such is merited by the Soldier's overall record.  

14.  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 request to upgrade his discharge was carefully considered and determined to be without merit.

2.  The applicant's record includes evidence which shows he violated the UCMJ by using cocaine.  Later, he pled guilty and was found guilty at a summary court-martial for being AWOL for the period 9 December 1996 through 9 January 1997.

3.  The statement provided by the applicant and those contained in his summary court-martial were carefully considered.  However, it is insufficient to support his contention that he should receive an upgrade of his discharge.  His misconduct clearly shows the quality of his service was diminished below that meriting an honorable discharge.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge 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 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)                                         AR20130004574



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ABCMR Record of Proceedings (cont)                                         AR20130004574



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