IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130006267 


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 his general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states he was told his discharge status could be upgraded.

3.  The applicant provides no documentary evidence.

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 2 November 1983 and was trained in and awarded military occupational specialty 77F (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.
3.  The record reveals a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for the offenses indicated:

* 9 September 1986, for indecent assault
* 24 December 1986, for 2 incidents of assault

4.  On 12 June 1987, the applicant was convicted by a special court-martial and found guilty of wrongfully communicating a threat and of being drunk and disorderly.

5.  On 11 August 1987, the unit commander notified the applicant of his intent to process him for separation under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of misconduct (pattern of misconduct) with an HD or GD.  The unit commander cited the applicant's pattern of misconduct as the basis for taking the action.

6.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effect.  He completed an election of rights in which he elected to waive consideration of his case by a board of officers and representation by counsel.  He did submit a statement in his own behalf.

7.  On 25 August 1987, the applicant submitted a 2-page statement indicating he strongly disagreed with the actions being taken against him.  He states, in effect, the field grade Article 15 he received was a result of a confrontation with a female Soldier wherein she hit and scratched him and he hit her, bruising her legs.  He also indicated that nothing was done when the same female Soldier entered his room, started breaking things and struck him.  The applicant continues what bothered him the most was being denied to speak to his superior when there was an "open door" policy.  The applicant concludes if his superiors felt he had "no further potential as a soldier" why was he then selected twice to participate in important missions.  He feels this shows he has potential and should be retained in the Army.

8.  On 31 August 1987, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, paragraph 14-12b, and directed he receive a GD.  On 11 September 1987, the applicant was discharged accordingly.

9.  The applicant's DD Form 214 shows he held the rank of private/E-1 on the date of his discharge, and he completed a total of 3 years, 10 months, and 8 days of active military service with 2 days of lost time.

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

11.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

12.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

13.  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 argues his GD should be upgraded to an HD because he was told his discharge status could be upgraded.

2.  The evidence confirmed he was discharged for misconduct due to various incidents of assault, communicating a threat, and for being drunk and disorderly.

3.  His separation action was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  
4.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It is clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of his 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)                                         AR20130006267



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ABCMR Record of Proceedings (cont)                                         AR20130006267



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