IN THE CASE OF:	  

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130010540 


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 upgrade of his general discharge. 

2.  The applicant defers presentation of argument and documents to his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant receive a fully honorable discharge.

2.  Counsel states the applicant was discharged just prior to the end of his period of service because he had personality differences with his unit sergeant.  One of the reasons the sergeant had a vendetta against the applicant was because a medical profile allowed him to wear sunglasses which disturbed the uniformity of the unit formation.  Also:

* The applicant's awards and commendations show his performance was not unsatisfactory
* He took advantage of educational opportunities by earning a General Educational Development (GED) Certificate and a High School Diploma
* The chain of command dismissed his separation processing rights, he was not informed of his right to consult with counsel and denied the right to submit statements in his own behalf
* He was not made aware of the negative statements made against him; if he had known he would have responded
* The sergeant pulled a sidearm on him and threatened him with sexual assault
* He is unemployed but still lives with his wife, daughters, and granddaughters
* His only interaction with the police was "a small conviction for drug possession”
* A discharge upgrade will help him improve his education and improve life for his family

3.  Counsel provides copies of:

* An 11 December 1980 medical profile to wear sunglasses outdoors as needed
* A letter of commendation for his selection as outstanding sentinel at advanced individual training
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A partial DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) for being absent from first formation on 10 November 1982
* DA Form 2627 for disobedience of a lawful order to not drink alcohol in the barracks.

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 4 December 1980.  He completed training as a cannon crewman and was stationed in Germany.  The highest rank he achieved was private first class (pay grade E-3)

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for offenses of failure to obey a lawful order, absence from his appointed place of duty, and some other offense(s).  The applicant submitted only the front page of one DA Form 2627 and it is not contained in the available records.  

4.  The applicant was counseled about offenses of disobeying orders and willful disobedience of a direct order and there is documentation of other instances of disobedience, disrespect, reckless driving, and missing formation. 

5.  On 19 July 1983, the battery commander notified the applicant of his intention to recommend separation with a general discharge for unsatisfactory performance.  He pointed out the possible consequences of such a discharge and the applicant's attendant rights.

6.  After being advised by consulting counsel of the basis for the contemplated action to separate him, the applicant acknowledged that since he was not being considered for separation for fraudulent entry or for a discharge under other than honorable conditions he did not have a right to counsel for representation, to be represented by counsel, or to have a board of officers consider his case.  He also indicated he understood he could expect to encounter substantial prejudice in civilian life and that, if he received less than an honorable discharge, he could apply to have the discharge upgraded.  An officer of the Judge Advocate General's Corps advised him of his rights and the effect of any waiver of those rights.  The applicant was offered the opportunity to but did not submit a statement in his own behalf.  

7.  The battery commander's recommendation for separation was disapproved and the applicant was transferred for rehabilitation to another battery.  

8.  On 19 August 1983, the applicant received his third NJP, for drinking in the barracks in violation of a written order.

9.  The new company commander recommended separation.  The battalion commander approved the request and ordered the issuance of a General Discharge Certificate. 

10.  The applicant was discharged on 16 September 1983 as a private (E-1).  He had 2 years, 9 months, and 13 days of creditable service.  His awards consisted of the Army Service Ribbon and the Expert Qualification Badge with Rifle and Grenade Bars. 

11.  There is no indication that the applicant ever applied to the Army Discharge Review Board. 

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	b.  Chapter 3 states 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.  Counsel contends the applicant was discharged because he had personality differences with his unit sergeant; one of the reasons the sergeant had a vendetta against the applicant because a medical profile allowed him to wear sunglasses, and the sergeant threatened him at the point of a gun.  He also contends the applicant was denied his due processing rights and he would have responded if he had known of the negative statements against him. 

2.  There is no substantiating evidence that the sergeant had a vendetta against the applicant or that he was threatened at the point of a gun. 

3.  The letter of commendation during training and his awards of the Army Service Ribbon and the Expert Qualification Badge with Rifle and Grenade Bars do not prove that his performance was satisfactory during his assignment to his permanent party unit. 

4.  He received NJP on three occasions, was counseled for two other offenses, and numerous other acts of misconduct are documented by notes in the record.  He surely would have at least known of the offenses outlined in the Article 15s, and he provides insufficient evidence to show he did not know of the other negative statements. 

5.  He was not deprived on any due process rights.  He was advised by consulting counsel and was offered the opportunity to submit a statement.  The processing for separation with a general discharge under the provisions of chapter 13 did not entitle him to representation by counsel (i.e., before a board), and the claim that he would have responded if he had known about the discreditable statements in the discharge package is mere conjecture.

6.  His family's current economic situation is unfortunate; however, improved economic and educational prospects like entitlement to veterans benefits are neither within the preview of this Board nor normally considered a basis for granting relief.

7.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20130010540





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ABCMR Record of Proceedings (cont)                                         AR20130010540



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