BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130007599 


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 the following:

* an upgrade of his general discharge to an honorable discharge
* deletion of the narrative reason shown in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 August 1985

2.  The applicant states:

	a.  He was overly reprimanded and it was later discovered that the sergeant major (SGM) was guilty of other wrongdoing and was forced to retire.  His unit tried rectifying their mistake by hiring him back as a civilian government employee.  He was hired back as a computer operator and even given a secret clearance.  The situation was generated by a fight with another Soldier who was drunk and calling his wife a "bxxxx" in a public environment over a seat.  In defending his wife’s honor he was reprimanded and the guilty party walked away free of any charges.  

	b.  He has worked for the Federal Government for over 20 years civil service and just recently learned he could apply for an upgrade of his discharge.  He was under the assumption that this was an automatic process after a certain period of time.

	c.  He was discharged from the Army with a general discharge on 20 August 1985 when he was stationed in Bremerhaven, Germany, Military Traffic Movement Command.  He worked in transportation as a computer operator.  He had served in the Army before as an infantryman from June 1975 through June 1979 and was honorably discharged at the expiration of his term of service (ETS) in pay grade E-4.  He separated from the military to go to school and to advance his career.

	d.  He comes from a family of military members where they have always believed in serving their country.  As a kid, he was in the Cub Scouts, served as a cadet in a community organization, and was in the Reserve Officers’ Training Corps in high school.  When he enlisted in the Army in June 1979, he graduated from basic training as Trooper of the Cycle and was squad leader several times during basic training.  While at his duty station at Fort Hood, TX, he achieved Soldier of the Quarter twice and Soldier of the Guards.  He was also awarded numerous time-off awards, Certificates of Achievement, and visits with the General Post Commander for his achievement.  

	e.  After his ETS he attended college and then reenlisted in the Army in 1981 and was stationed at Fort Sam Houston, TX.  He was a model Soldier and attended the pay grade E-5 board and was selected for several advanced schools in transportation.  During his good service he was selected for a special assignment in transportation as a computer operator.  After a 6-month training school at General Electric, he was reassigned to Bremerhaven, Germany, Military Traffic Movement Command.  Again working as a good Soldier he received a Certificate of Appreciation and merits for his good work.

	f.  He married another military member at Fort Sam Houston, TX.  After his wife arrived in Bremerhaven and for almost 2 years after being there they went out one evening with friends.  He stepped away, leaving his wife at the table.  When he returned there was a gentleman sitting at the table with his wife in his chair along with his dinner and beverage at the seat he was sitting in.  He asked the gentleman to excuse him because he was sitting in his chair, that was his wife sitting next to him, and that was his dinner in front of him.  The gentleman told him to get lost and "fxxx" him.  He asked the gentleman several times if he would allow him his seat and the third time the gentlemen told him "fxxx" that "bxxxx" and he would kick his butt.

	g.  The gentleman then pushed him in the chest over a chair and when he got up he proceeded to fight.  Being with his wife and trying to protect her he left the establishment and went home which was not far.  The military police became involved and an incident was filed and sent to his unit where he faced punishment under Article 15, Uniform Code of Military Justice (UCMJ).  He was promotable to pay grade E-4 at the time.  His punishment included a reduction to pay grade E-2, a forfeiture of pay, extra duty, and restriction to base for two weeks away from his wife.

	h.  He provided witnesses who were there and they stated that he was not at fault and was attacked.  He accepted the punishment, but found out that nothing happened to the guy who attacked him and disrespected his wife.  He had faith that his SGM would have his best interest at heart.  He requested a discharge and the SGM told him that he was not going to let him out and if he did get out he would make things bad for him.  He was told his general discharge would be upgraded to an honorable within 6 months to a year.

	i.  After his discharge he noticed item 28 of his DD Form 214 stated "Unsatisfactory Performance."  This was not the case of his discharge and he was being punished twice for doing nothing but defending his wife.

	j.  He still loves the military and stills works and lives in a military environment. 
He has managed to work 20 years civil service and 7 years as a Federal contractor.  He feels he needs to set the record straight regarding his   DD Form 214.

3.  The applicant provides:

* 1983 Army Achievement Medal certificate
* 1984 Certificate of Achievement
* Military Traffic Management Command appreciation certificate
* two copies of his 1985 DD Form 214
* DD Form 5433-R (Verification of Overseas Employment for Noncompetitive Appointment under EC 1221)
* 1991 DA Form 5398 (Civilian Performance Rating)
* 1992 Scroll of Appreciation certificate
* Computer Specialist Performance Plan
* Department of Veterans Affairs – Supervisory Appraisal of Employee for Promotion and Performance Appraisal
* three 2011 Certificates of Achievement
* two 2011 Certificates of Appreciation
* Four letters of support
* American Legion 2012 Annual Dues notice

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 (RA), in pay grade E-1, on 9 June 1975.  He completed training and was awarded MOS 11B (light weapons infantryman).  He served in Germany from 10 October 1978 through 24 February 1979.  He was promoted to pay grade E-4 on 1 December 1977.

3.  He was honorably released from active duty on 10 June 1979 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with completing 4 years of net active service.

4.  He enlisted in the California Army National Guard (CAARNG) on 26 January 1981.  He was released from the CAARNG on 18 March 1981 for the purpose of enlistment in the Active Army.

5.  He enlisted in the RA in pay grade E-4 on 19 March 1981.  He served in MOS 71N (traffic management coordinator).  He extended his reenlistment on 
30 December 1982 and 18 August 1983.  He again served in Germany from 
14 August 1983 through 19 August 1985.

6.  He accepted nonjudicial punishment under Article 15, UCMJ, on/for:

* 18 January 1984 – making a false statement with intent to deceive
* 5 March 1985 – committing an assault upon another Soldier by attempting to strike him with a dangerous weapon likely to product bodily harm on 6 October 1984; his punishment included extra duty, restriction, and an oral reprimand
* 19 March 1985 – operating a passenger car while drunk and breaking restriction on 9 March 1985; his punishment included a reduction to pay grade E-2 and restriction and extra duty

7.  He was reduced to pay grade E-2 on 19 March 1985.

8.  On 15 April 1985, he received counseling for his numerous personal problems in the past; owing the government a few thousand dollars; forging his divorce papers; his fight at a local bar; receiving a summary Article 15 with restriction and extra duty; and breaking restriction and getting a driving under the influence for which he received an Article 15 with extra duty, restriction, and reduction to pay grade E-2.  He was also advised that due to his personal misconduct and numerous violations of the UCMJ he would be facing a chapter 14 (exhibited patterns of minor military infractions of discipline) from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 18a.

9.  On 16 April 1985, a bar to reenlistment was initiated against the applicant.  The applicant’s battalion commander stated the applicant’s continued pattern of personal misconduct that started even before his arrival at that unit (while enroute on temporary duty) with a series of dishonored checks, and continued for the past 18 months, with again, more bad checks and Article 15s, were strong indicators of his lack of potential for further retention on active duty.  The applicant’s personal conduct was detrimental to established good order and discipline and brought discredit and embarrassment to that Terminal and the U.S. Army.  

10.  On 2 May 1985, he received verbal counseling in reference to the numerous dishonored checks he incurred in 1983 and the over-stamping of his identification card.

11.  In July 1985, the applicant’s battalion commander notified the applicant of proposed action to separate under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13, for Unsatisfactory Performance.  He advised the applicant of his rights and that he could receive a general or an honorable discharge.

12.  On 26 July 1985, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general and the results of the receipt of a general discharge.  He further acknowledged he could request an upgrade of a discharge which was less than honorable by making application to the Army Discharge Review Board (ADRB) or ABCMR; however, the act by either board did not imply that his discharge would be upgraded.  He waived his rights and elected to not submit a statement in his own behalf.    

13.  On 30 July 1985, the applicant’s battalion commander recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-200, chapter 13, for Unsatisfactory Performance.

14.  On 31 July 1985, the Assistant Staff Judge Advocate determined his administrative elimination packet substantially complied with the provisions of Army Regulation 635-200, chapter 13.  

15.  On 7 August 1985, the separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate.

16.  He was discharged in pay grade E-2 on 28 August 1985.  He was credited with completing 4 years, 5 months, and 2 days of net active service during the period under review with no time lost.  His DD Form 214 shows in:

* Item 25 (Separation Authority) - Army Regulation 635-200, chapter 13
* Item 26 (Separation Code) – JHJ
* Item 28 – Unsatisfactory Performance

17.  There is no evidence the applicant applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 13 – the policy and outlined the procedures for separating individuals for unsatisfactory performance.  Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

	b.  Paragraph 3-7a – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

19.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for those stated reasons.  The SPD of "JHJ" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "Unsatisfactory Performance" and the authority for discharge was Army Regulation 635-200, chapter 13.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he received counseling between April and May 1985 for his numerous personal problems in the past including owing the government a few thousand dollars; forging his divorce papers; his fight at a local bar; receiving a summary Article 15; and breaking restriction and driving under the influence.  

2.  He was subsequently barred from reenlistment.  His battalion commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for Unsatisfactory Performance.  The separation authority approved his discharge and as a result he was discharged on 20 August 1985 accordingly.

3.  His contentions and the documents he provided were carefully considered.  However, the evidence of record shows he acknowledged the reason for his separation, waived his right, and elected not to submit a statement in his own behalf.  He also acknowledged he could apply to the ADRB or ABCMR for an upgrade of his discharge; however, the act by either board did not imply that his discharge would be upgraded.  He waived his rights and elected to not submit a statement in his own behalf.    

4.  He did not provide sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an honorable discharge.

6.  He has failed to show through the evidence submitted or the evidence of record that the separation code and narrative reason for separation of his 1985 DD Form 214 are incorrect.  Therefore, he is not entitled to the requested relief.

7.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.


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)                                         AR20130007599



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007599



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1