IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130007850 


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 a fully honorable discharge. 

2.  The applicant states:

	a.  While he was the acting motor sergeant at Fort Stewart, GA, he was preparing for formation along with all his fellow Soldiers.  When the first sergeant came and they began lining up in their designated positions, he was backing into his position when Staff Sergeant (SSG) J----s all of a sudden pushed him and stated "Hey you almost stepped on my f----ng boots."  He was very disrespectful toward him (the applicant) and the push along with him using curse words upset him.  He then said some choice words to SSG J----s who then wrote him up for insubordination.  He received an Article 15 and extra duty for something he said, after SSG J----s pushed him and spoke to him in that way.  He was eventually chaptered out of the military.  He feels like he wasn't given the appropriate stage to tell his side of the story and to let his supervisors know what happened that day, from his point of view.  He knows that his actions were wrong also; however, he feels that it is not fair that he (SSG J----s) was allowed to violently put his hands on him and curse at him because he "almost" stepped on his boots, and he had to live with the punishment for the rest of his life.  He has since replayed the event in his head and it causes him great grief every time he remembers what happened.  He would like his character of service changed to honorable. 

	b.  He tried to give his best to serve his country.  He is very proud to have served in the U.S. Army.  When he first got out, he really did not care about the discharge, because he felt that he had been treated very unfair and it was simply good to be done with it all.  However, this thing has caused problems for him throughout his life.  He was 25 years old when this happened and this year he will be 50.  For 25 years he has been tormented with the thoughts of this incident. He is sorry for his reaction; however, it was a reaction to what SSG J---s did to him and what he said to him.  His commander, first sergeant, platoon sergeant, or squad leader should never have let such hard action come upon him for this, and SSG J---s received not even a reprimand for his actions toward him.  Twenty-five years later one of his biggest regrets is that he did not seek to request that this injustice be corrected much earlier.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 had prior service, the applicant enlisted in the Regular Army (RA) on 31 May 1983 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He also executed a reenlistment in the RA on 4 August 1987.  He served in Germany from 22 January 1985 to 11 January 1988 and he attained the rank/grade of specialist four/E-4.  

3.  He was awarded the Army Service Ribbon, Army Achievement Medal, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. 

4.  Although not available with this case, it appears he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for an offense.  Furthermore, on 23 September 1985, the suspension of the punishment of reduction to E-3 (suspended until 20 November 1985) that was imposed on 21 May 1985 was ordered vacated after the applicant committed an assault on private first class C.A. St----s on 13 September 1985.  

5.  On 22 November 1989, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order from a superior noncommissioned officer. 

6.  His records contain a history of negative counseling for various infractions including:

* an extensive history of writing bad checks and failing to pay debts
* a history of being disrespectful toward superiors and disobeying lawful orders
* failing to pay support to his spouse

7.  On 15 November 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense, assault. The immediate commander also notified him that he intended to recommend his service be characterized as under other than honorable conditions.

8.  On 15 November 1989, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation 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.  He requested consideration of his case by a separation board and a personal appearance before a separation board but he elected not to submit a statement in his own behalf.  He also voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less than a general, under honorable conditions.  He further indicated that he understood:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

9.  Subsequent to his acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  He recommended an under honorable conditions (general) discharge. 

10.  On 20 November 1989, his intermediate commander recommended approval of the applicant's separation with an under honorable conditions discharge.

11.  On 22 November 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions (general).  On 14 December 1989, the applicant was discharged accordingly.

12.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense with a character of service of under honorable conditions.  This form further confirms he completed 6 years, 6 months, and 
14 days of active service during this period of service.

13.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  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.  

	b.  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 committed a serious offense of assault.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His 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.

2.  An 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.  The applicant's record contains an extensive history of negative counseling for dishonored checks, disobeying orders, and insubordination/disrespect.  

3.  Based on the applicant’s record of multiple acts of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient basis for granting the applicant's requested relief.

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)                                         AR20130007850





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ABCMR Record of Proceedings (cont)                                         AR20130007850



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