BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130021027 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect that his discharge was based on the hate that existed between him and his captain.  He received two Article 15s and his discharge was due in part to the language he used toward his captain, which he now regrets.  He is not proud of what he did but he did serve his country honorably.

3.  The applicant provides a one-page letter explaining his application and copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his record of assignments from his DA Form 2-1 (Personnel Qualification Record – Part II)

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.  He enlisted in the Regular Army on 27 August 1982 for a period of 3 years.  He completed his basic training at Fort Jackson, SC and his advanced individual training as a motor transport operator at Fort Leonard Wood, MO, and he was transferred to Germany on 12 January 1983.

3.  He departed Germany on 5 July 1984 for assignment to Fort Carson, CO.  He reenlisted on 14 August 1985 for a period of 3 years.  On 21 July 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

4.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 8 March 1987. 

5.  On 23 September 1987, his commander notified him that he was initiating action to bar him from reenlistment based on his disciplinary record and his failure to respond to repeated counseling sessions.  The applicant declined the opportunity to submit a statement in his own behalf and the bar to reenlistment was approved on 5 October 1987.

6.  On 25 September 1987, he accepted NJP for assaulting another Soldier with a loaded firearm and carrying a concealed weapon.

7.  On 19 October 1987, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14, for misconduct based on commission of a serious offense.  He cited as the basis for his recommendation serious offenses including assault with a deadly weapon, adultery, carrying a concealed weapon, leaving his place of duty without authority, and failing to respond to repeated counseling and rehabilitation efforts.

8.  After consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

9.  On 23 October 1987, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged with an under other than honorable conditions discharge on 30 October 1987 under the provisions of Army Regulation 635-200, paragraph 14-12c due to misconduct – commission of a serious offense.  He had served a total of 5 years, 2 months, and 4 days of active service.

11.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Based on his many incidents of misconduct, the characterization of his service was appropriate for the circumstances of his case.
 
3.  The applicant’s contentions have been noted and found to lack merit as they are not supported by the evidence of record or evidence submitted with his application.  The applicant was serving as a junior noncommissioned officer and he violated the trust placed in him by his repeated acts of misconduct.  

4.  In view of the foregoing there appears to be no basis for granting the applicant an honorable or a general 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)                                         AR20130021027





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ABCMR Record of Proceedings (cont)                                         AR20130021027



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