IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015727 


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 under honorable conditions to an honorable discharge.

2.  The applicant states his service was honorable although he had one infraction which he contested.  Afterwards he was written up many times in retaliation for contesting the original infraction.  He wished he had reported being harassed and requested a transfer to another unit, but he continued in his unit until he was told he was going to be given a general discharge.  He was not given a chance to fight the discharge he was being given.  He has been a productive citizen since his discharge.  He has "been involved in law enforcement, firefighter, and living an honorable life."  He is presently operating heavy equipment full time and serving his country and community.

3.  The applicant provides no additional evidence in support of his application. 

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.  On 28 October 1986, he enlisted in the Regular Army.  He was assigned to Company A, 37th Engineer Battalion at Fort Bragg, NC.

3.  On 20 January 1988, he accepted nonjudicial punishment (NJP) for using provoking words towards a specialist four/pay grade E-4.  He did not appeal the punishment imposed.

4.  On 9 March 1988, the applicant's commander initiated a local Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment based on a record of NJP for striking an E-4 and wrongful appropriation of a motor vehicle.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 9 March 1988, shows:

* he acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment
* he was counseled and advised of the basis for the action
* he indicated he did desire to submit a statement in his own behalf

6.  On 9 March 1988, the applicant submitted a statement concerning his proposed bar to reenlistment.  He stated:

* he was still a good Soldier
* his acting platoon sergeant was out to get him for making him look bad
* the attitude of people receiving NJP, being chaptered, and barred from reenlistment because they tell the truth and might have rocked the boat with the wrong people in it was greatly illustrated in his company
* he felt a good Soldier was held down in his unit and was not allowed to show his true abilities and talents

7.  On 15 March 1988, his bar to reenlistment was approved by the battalion commander, a lieutenant colonel.

8.  On 20 May 1988, he was awarded the Army Achievement Medal for service from 28 - 31 March 1988.

9.  On 26 July 1988, he received NJP for operating a vehicle in a reckless manner by accelerating and turning at a speed that caused an unsafe situation for his passengers.  On 26 July 1988, he appealed the NJP and on 27 July 1988, his appeal was denied.

10.  On 12 January 1989, he accepted NJP for being derelict in the performance of his duties by failing to perform his duties.  While pulling guard he was in the state of partial uniform, observed with beer on the guard site, and he was late for his duty.

11    On 22 January 1989, his commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct based on his driving while impaired (DWI) on 19 June 1988, dereliction of duty, reckless driving, and threatening of Soldiers.  The commander further notified the applicant he was recommending that he receive a general discharge.

12.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* obtain copies of documents that would be sent to the separation authority supporting his proposed separation action
* consult with counsel and/or civilian counsel at no expense to the Government within a reasonable time period
* request a hearing before an administrative board if he would have 6 or more years of active and reserve military service at the time of separation or an other than honorable discharge has been recommended
* appear before an administrative separation board
* execute a conditional waiver of rights to an administrative separation board providing that the characterization of service proposed is general under honorable conditions or under other than honorable conditions
* waive any of these rights in writing 
* withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge

13.  On 22 January 1989, the applicant acknowledged he received the notification of discharge and he desired to:

* consult with consulting counsel
* submit a statement in his own behalf

14.  On 24 January 1989, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

15.  A letter, dated 27 January 1989, from the rear detachment commander provided a statement of formal counseling in support of administrative action in the applicant's case.  The letter indicates the applicant received formal counseling on:

* 15 and 23 February and 15 March 1988 for performance
* 6, 7, and 14 June 1988 for reckless driving, giving false information to a noncommissioned officer (NCO), disrespect toward an NCO, and driving privileges
* 16 September 1988 for performance
* 26 October 1988 for leaving his appointed place of duty and being absent from his appointed place of duty

16.  On 30 January 1989, after consulting with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct.  He stated he:

* would submit statements in his own behalf
* could, up until the date the separation authority orders, directs, or approves his separation, withdraw the waiver of any of the above rights and request that an administrative separation board hear his case
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him

17.  In his statement, dated 7 February 1989, the applicant stated he didn't wish to be put out of the Army, but he did desire to be transferred out of the 
37th Engineer Battalion.  Since his first Article 15 he didn't feel he was given a chance to redeem himself.  If the decision was made to keep him in the Army, he needed to be put in a different brigade or battalion.  The DWI mentioned in his separation proceedings was dropped in court.  He stated the Article 15's he received were weak and there was never an honest charge.  He felt he had served honorably and tried to stay out of trouble, but it was hard when you're a marked man and not given a fair shake.

18.  His commander recommended his separation from the Army prior to the expiration of his term of service by reason of a pattern of misconduct.  He recommended a general discharge.  The reasons for the proposed action were the applicant's driving while impaired on 19 June 1988, dereliction of duty, reckless driving, and threatening of Soldiers.

19.  On 13 February 1989, the appropriate authority approved the applicant's discharge under the provisions of paragraph 14-12b of Army Regulation 635-200 based upon his pattern of misconduct with the issuance of a general discharge.  

20.  Army Regulation 601-280 (Total Army Retention Program) governed bars to reenlistment at the time in question.  Essentially, this regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment.  Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she can submit a statement on his or her own behalf.  Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority.  The regulation required that for a Soldier with less than 10 years' active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action).  The personal signature of the approving or disapproving authority is required.  The regulation also provided that the Soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority.

21.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 14 in effect at the time dealt with separation for various types of misconduct.  Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct.  This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army.  The issuance of a discharge under other than honorable conditions was normally considered appropriate for separations under the provisions of chapter 14.

	b.  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.  He contends he was harassed and written up many times in retaliation 
for contesting his original infraction.  However, he has provided no evidence to support his contention.

2.  He contends he was not given a chance to fight the discharge he was given.  However, at the time he was notified his commander was initiating action to discharge him, he was advised he could submit a statement in his own behalf.  He submitted a statement, dated 7 February 1989, that would have been included with the discharge proceedings.  Therefore, his contentions in his statement were reviewed by the discharge authority prior to his approving his discharge.

3.  The record of counseling shows he required counseling concerning the performance of his duties and fulfilling his responsibilities on numerous occasions.  He received NJP on three occasions.

4.  In view of the above, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  It is clear his entire record of service and the statement he submitted were considered in that he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which is normally considered appropriate in chapter 14 separations.

6.  He was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

7.  In view of the above, there is an insufficient basis upon which to upgrade 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)                                         AR20130015727



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ABCMR Record of Proceedings (cont)                                         AR20130015727



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